(dissenting). Subdivision 5 of section 50-e of the General Municipal Law states, “ The court, in its discretion, may grant leave to serve a notice of1 claim within a reasonable time after the expiration of the time specified in subdivision one of this section [90 days] in the following cases: (1) Where the claimant is cm infant, or is mentally or physically incapacitated, and by reason of such disability fails to serve a notice of claim within the time specified.” (Emphasis supplied.) We have consistently held that where the claimant is an infant, there must be a cognizable relation between the fact of infancy and the failure to serve timely notice to justify a discretionary extension of the time limit within which such service must be effected (Marquart v. County of Erie, 36 A D 2d 578; Chao v. Westhill Cent. School Dist., 35 A D 2d 1071; Matter of Perry v. Board of Educ. of City of Lackawanna, 34 A D 2d 1089; Matter of Andrzejewski v. Board of Co-op Educational Servs., A D 2d 881; Matter of Harden v. Village of Akron, 32 A D 2d 610; Matter of Klee v. Board- of Co-op. Educational Servs., 05 A D 2d 715; Matter of Borowski v. Town of Clarence, 19 A D 2d 580). However, we have not applied this standard uniformly in determining whether discretionary extensions have been properly granted.
In Matter of Borowski v. Town of Clarence (supra), we held that there was no cognizable relation between infancy and late notice where a 19-year-old failed to consult an attorney until after the 90-day time period had expired because he did not realize he had an actionable claim. In Matter of Harden v. Village of Akron (supra), we failed to find a cognizable relation where a 19-year-old had retained an attorney but neither realized, *497there was an actionable claim until four months after the time period had elapsed. Similarly, in Cooke v. City School Dist., Rochester (38 A D 2d 686) we refused to allow an extension of time without some indication of an infant’s age and in Marquart v. County of Erie (36 A D 2d 578, supra), we remitted a case to Special Term for further findings as to causal connection between infancy and failure to give timely notice.
On the other hand, we have found there to be a cognizable relation between infancy and lack of notice where the infant was also mentally retarded (Matter of Klee v. Board of Co-op. Educational Servs., 25 A D 2d 715, supra), where an attorney was not retained until after the 90-day period had expired because plaintiff’s parent believed defendant would voluntarily pay the child’s claim (Chao v. Westhill Cent. School Dist., 35 A D 2d 1071, supra), where an attorney was timely retained but the identity of the proper municipal defendant was not immediately ascertained (Matter of Perry v. Board of Educ. of City of Lackawanna, 34 A D 2d 1089, supra; Matter of Andrzejewski v. Board of Co-op. Educational Servs., 34 A D 2d 881, supra), and where an adult, mentally disabled plaintiff had retained an attorney who failed to serve notice in compliance with the statute because ‘‘ but for this disability he might have become aware of his attorney’s neglect and served timely notice of claim ’ ’ (Matter of Reynolds v. Greece Cent. School Dist. Number One, 36 A D 2d 1020,1021).
The Court of Appeals in Matter of Murray v. City of New York (30 N Y 2d 113) has noted that the manner in which our department as well as the Second and Third Departments has either allowed or disallowed extensions of time to serve notice under this statute in situations similar to the one now before us is erratic. The First Department, until recently, has demonstrated a degree of consistency by construing the statute strictly but that court has apparently deviated from its strict construction (Matter of Potter v. Board of Educ. of City of N. Y., 43 A D 2d 248). In my Opinion, the court in Murray (supra), and more recently in Matter of Stowe v. City of Elmira (31 N Y 2d 814) has not provided us with any firm direction as to how we should proceed to unify our own decisions and to conform thefn with those of the other three Appellate Division Departments.
In Murray (supra),the court affirmed the granting of leave to file a late notice of claim in a medical malpractice case brought against a municipal hospital. The plaintiff, a 19-year-old. ¡boy, was injured in a motorcycle accident and had retained an *498attorney in connection with a resultant personal injury claim. He did not realize until well after rthe expiration of the statutory 90-day period, however, that he also had a malpractice claim and this lack of realization was determined to be sufficiently related to his infancy to permit a late notice.
In Murray, the court clearly stated that by the terms of General Municipal Law (§ 50-e, subd. 5) the fact of infancy alone is insufficient to relieve a prospective litigant from the consequences of his default in serving timely notice of claim and that absent a showing that the failure to give notice was “ the product of the infancy ’ ’ the claim would be barred. However, it went on to say that an infant may be presumed not to understand his rights well enough to assert them without -delay and concluded that, in any event, whether there is a cognizable relation between infancy and the delay is a matter committed to the sound discretion of the court, to be exercised in light of all the facts and relevant circumstances in a given case. "Where satisfied that either an extension or refusal to extend the notice period has been accomplished “ within the perimeters of reason ”, the court said that it would not interfere.
Since Murray criticizes the manner in which these cases have been handled and suggests that the departments strive for uniformity not only in each department but among all four, it is our responsibility as the majority suggests, to insure at least a minimal degree of uniformity between one tribunal and the next. I agree with that but do not agree that this uniformity should be provided by applying the causal connection standard so liberally that the words of the statute are left without meaning. To do so is to repeal the statute by judicial fiat and this is beyond the power of the courts. Regardless of our previous decisions, I would begin now to achieve uniformity by adhering to the plain words of the statute, not by ignoring them. If, as the majority -contends, the notice requirement operates so harshly that it ought to be stricken from the books, the Legislature should do it. The Association of Justices of the Supreme 'Court in the state, through its Committee 'on Reform of the Law, has requested the passage of such legislation.
I think that on the facts of the case now before us there is absolutely no causal connection between the fact of infancy and the late notice, and that Special Term did not abuse its discretion in refusing* the plaintiffs leave to serve notice after the expiration of the 90-day period. Here, the father retained an attorney to represent him and his infant son within a few days after the accident occurred. There was no failure or delay *499on the infant’s part in ascertaining that he had what might prove to be an actionable claim. What apparently happened was that the attorney failed to insure that notice was timely served. If any causal connection mu'st be drawn, it can only be drawn to the attorney. The majority’s extension of that connection to the infant on the slender thread that, had it not been for his infancy, he might have retained a more diligent lawyer, is to me untenable. As Judge Breitel pointed out in Ms concurring opinion in the Murray case, ‘ ‘ Where an infant is in the later years of minority * * * and when the infant of whatever age has a lawyer representing him * * " there is and oan be no causal connection between the disability of infancy and the failure to file a claim promptly. ” (Matter of Murray v. City of New York, 30 N Y 2d 113, 121, supra.) (Emphasis supplied.)
Accordingly, I would affirm the order of ¡Special Term and refuse plaintiff leave to file a late notice of claim.
Cardamone, Simons and Del Vecchio, JJ., concur with Wither, J. P.; Moule, J., dissents and votes to affirm the order in an opinion.
Order reversed with costs and petition granted.