I take no issue with the comment of my brother Sandler that the general recasting of section 50-e of the General Municipal Law was prompted by the observation of the Court of Appeals that “[t]he need for legislative reconsideration of the harsher aspects of section 50-e is apparent *** in order that a more equitable balance may be achieved between a public corporation’s reasonable need for prompt notification of claims against it and an injured party’s interest in just compensation” (Camarella v East Irondequoit Cent. School Bd., 34 NY2d 139, 142-143; see, also, Twenty-first Ann Report of NY Judicial Conference, 1970, p 286 et seq.). Indeed, Adkins v City of New York (43 NY2d 346), to which the old law was applicable although the case was finally decided after the new law became effective, illustrates, even more vividly, the harshness of section 50-e in its pre-1976 form. There a notice served by mail on the 90th day but not received until the 96th day was held to be ineffective.
Similarly, I do not quarrel with the conclusion in this case that, had leave to file a late notice been applied for on August 27, 1976, when the late notice was filed without *134prior judicial approval, leave to file such late notice would have been warranted.
However, I do take issue with the conclusion that in this case leave to file the notice of claim nunc pro tunc and striking the city’s first affirmative defense was warranted. A brief recital of the chronology of events will serve to illustrate the point. Plaintiff was injured on April 7, 1976. He remained hospitalized until July 24, 1976, a period beyond the 90 days prescribed for service of the notice of claim by section 50-e. He served a notice, without prior judicial approval on August 27, 1976. The comptroller’s hearing was held on April 11, 1977 and on April 12, 1977 he commenced this action. Issue was joined on March 9, 1978 by the service of the city’s answer setting forth as an affirmative defense the failure to serve the notice of claim as prescribed by law.
It may be asserted, perhaps with some justification, that up to this point plaintiff was unaware that the city was rejecting his notice as not timely served. With the service of the answer he was made aware of this situation. However, not until October 7, 1980 — some two and one-half years later, and four and one-half years after the occurrence of the accident — did he take action. Such laches is inexcusable and bars the right of plaintiff to the relief accorded him. On the basis of the determination here made by the majority, it is difficult to conceive of any case in which a late filing would not be entitled to be excused.
It may well be that the conceptual underpinning upon which section 50-e is bottomed is archaic and has no relevance to modern urban society where suits against a municipality comprise much of our overcrowded civil calendars. If that be so, the remedy is legislative action to repeal or amend the statute. The result should not be achieved by judicial emasculation.
I would reverse the determination of Special Term and deny the motion upon the ground that, as a matter of law, Special Term abused its discretion.
Sullivan, Ross and Carro, JJ., concur with Sandler, J. P.; Bloom, J., dissents in an opinion.
*135Order, Supreme Court, New York County, entered on February 6, 1981, affirmed, without costs and without disbursements.