On July 7, 1973, Ramiro Febles, the infant claimant, one month short of 18 years of age, was struck by a motorcycle while grossing an intersection. He was removed to the
.Ramiro’s father retained an attorney on July 20, 1973. The attorney has affirmed, under penalty of perjury, that both the infant and his father are Spanish speaking, resulting in a substantial language barrier which prevented adequate communication between him and his clients. Furthermore, the boy’s critical condition for more than two months presented additional difficulties in communication. The attorney acted promptly. His request for the aided card and a detailed accident report was received by the police department on July 27, 1973. The only record furnished by the police department was the aided card report which did not indicate that the city was in any way involved. After a telephone call and two additional written requests, the attorney received from the city’s police department the long-withheld' investigation report on November 20, 1973. This report indicated that the motorcyclist had lost control of his vehicle When he struck a bump or defect in the roadway. The attorney moved for permission to file the' late notice immediately upon learning of the apparent involvement of the city.
Here, we not only indulge in the presumption of an impediment attending infancy, suggested in Matter of Murray v. City of New York (30 N Y 2d 113) and followed by this court in Sherman v. Metropolitan Tr. Auth. (44 A D 2d 533), but considering the infant’s serious injuries, the language barrier, the prompt action by the infant’s attorney in attempting to obtain the accident reports and the city’s failure to explain why it did not transmit facts in its possession (facts incidentally tending to show possible liability by the city) until more than 90 days from the date of the accident had elapsed, we hold that discretion should have been exercised in favor of the application.
The distinguished dissenter is in error in stating that by this determination this Department has now made a complete about-face. It is true that there has been a shift by this court in its views regarding the scope of discretion in permitting late filing, but the long-overdue change was first made by .us in Matter of Potter v. Board of Educ. of City of N. Y. (43 A D 2d 248 [Jan. 4, 1974]) and followed by Sherman v. Metropolitan Tr. Auth. (supra). We have not altered the statute. We have interpreted the statute to conform with the views of the other three Departments and the Court of Appeals. Prior to Matter of Potter v. Board of Educ. (supra), this .Department, holding: to a strict
As the Court of Appeals said in Matter of Murray v. City of New York (30 N Y 2d 113, 120, supra)-. “ An infant of 19 may indeed lack the acumen to appreciate the source, or for that matter, the nature of the wrong allegedly perpetrated against him and, consequently, have been remiss in the proper assertion of his legal rights. The impediment may reasonably be presumed to attend infancy; there is no requirement that it be factually demonstrated [citing cases]. Under the circumstances, the fact of infancy may well have been an important factor in the failure to file a notice of claim.” We also heed the observations of the then Judge, now Chief Judge Breitel, made in his concurring opinion in Matter of Murray (supra) that except to the practitioner who is skilled in tort cases or claims against municipalities, section 50-e is a mousetrap and that such statute should provide a greater discretion to give
When Special Term denied this application, it could not have been aware of the change of policy by this court. Matter of Potter v. Board of Educ. (43 A D 2d 248, supra) was decided the same date the judgment herein was entered. Indeed, the ultimate discretion in these cases must be exercised by the Appellate Division (Matter of Stowe v. City of Elmira, 31 N Y 2d 814; Matter of Murray v. City of New York, 30 N Y 2d 113, supra; Matter of Biberias v. New York City Tr. Auth., 27 N Y 2d 890, supra; Matter of Crume v. Clarence Cent. School Dist., 43 A D 2d 492, supra). Considering the facts and circumstances of this case, we feel that the application should have been granted and therefore reverse.
Order and judgment entered in the Supreme Court, Bronx County (Brust, J.) on January 4, and February 4, 1974, respectively, denying the infant claimant’s application for leave to file a late notice of claim on the City of Few York should be modified on the law, the facts and in the exericse of discretion, without cpsts, so as to grant the infant claimant’s application to file a late notice of claim, and otherwise affirmed.