Sherman v. Metropolitan Transit Authority

Gabrielli, J. (dissenting).

The order of the closely divided Appellate Division is required to be reversed and the determination of Special Term should be reinstated.

In a case infinitely more appealing insofar as the extension of an infant’s rights to file a late claim, we held, barely a year ago that "[t]he incapacities of the claimant, not those of his lawyer, are the relevant considerations under subdivision 5 of section 50-e of the General Municipal Law. And there was certainly insufficient in the record to compel a finding that the *778failure to serve timely notice of claim was attributable…