279 A.D. 1035 | N.Y. App. Div. | 1952
No opinion. Carswell, Johnston and MaeGrate, JJ., concur; Nolan, P. J., and Wenzel, J., dissent and vote to reverse and to deny the motion to confirm the report of the official referee, and to grant claimant’s motion for leave to serve the notice of claim, with the following memorandum: It must be conceded, on the record presented, that the appellant was, for a time during the ninety-day period following her accident, able to perform her duties as a teacher to a limited extent, and that there is a sufficient basis in the evidence for a finding that at times during that period she was neither mentally nor physically completely incapable of stating in writing the facts and circumstances surrounding her accident and the other matters required to be stated by section 50-e of the General Municipal Law. The undisputed evidence, however, establishes that her accident resulted in a fracture of the skull which was not discovered by the doctor whom she first consulted, and for which she was not receiving proper treatment. This condition resulted not only in considerable physical pain and discomfort but also in an impairment of her mental capacity to such an extent that she was unable to integrate her thoughts. The condition grew progressively worse until the true extent of her injury was eventually discovered and proper treatment accorded. It can hardly be doubted, on consideration of the evidence presented, that her mental condition resulting from the injury was such as to impair seriously