
    Dorothy Blecker, as Administratrix of the Estate of Max Blecker, Deceased, Respondent, v. City of New York, Appellant.
   Order entered August 17, 1964 granting claimant’s motion to file a late notice of claim reversed on the law and the facts, with $30 costs and disbursements to appellant. Respondent sought damages for wrongful death and conscious pain and suffering arising out of the death of her husband on August 10, 1963. No effort to file the instant claim was made until August, 1964, at least eight months beyond the permissive 90 days provided in subdivision 1 of section 50-e of the General Municipal Law. The claimant widow on September 11, 1963, approximately one month after the accident, was appointed administratrix and at that time was represented by counsel. She asserts that a lack of knowledge of the requisite formal notice and her mental and physical condition caused the delay. Claimant has failed to establish that the delay was caused by her incapacity, and the circumstances here do not permit the exercise of discretion to allow late filing. (General Municipal Law, § 50-e, subd. 5.) Matter of Stefano v. City of New York, 285 App. Div. 1042. Concur — Rabin, Valente and Stevens, JJ.; Breitel, J. P., and Eager, J., dissent in part and vote to reverse and remand for a hearing on the issue whether the medical condition attributed to plaintiff was the cause of the failure to file timely within the meaning of section 50-e of the General Municipal Law.  