180 Misc. 550 | N.Y. Sup. Ct. | 1943
Defendant moves for summary judgment dismissing the complaint in this action brought by plaintiff to recover for personal injuries alleged to have been sustained by her as a result of defendant’s negligence. Defendant contends that the action is barred by the provisions of section 29 of the Workmen’s Compensation Law, which require that the present action be brought within six months after any award in compensation. It appears that plaintiff filed a claim under the Workmen’s Compensation Law and received an award of sixty-five dollars and seventy-eight cents on October 20, 1941. It is not disputed that more than six months elapsed between the date of the award and the date on which the present action was commenced.
Plaintiff asserts, however, that the provisions of section 29 are not binding upon her since she was an infant at the time the award in compensation was made to her. Defendant argues that plaintiff may not avail herself of the claim of infancy since she was also married at the time.
Under the circumstances, it would appear that the plaintiff here is not barred from maintaining the present action, and, accordingly, defendant’s motion for summary judgment is denied.
The cross motion to appoint a guardian ad litem, nunc pro tunc, for the infant plaintiff is granted. The failure to appoint such guardian prior to the commencement of the action is a mere irregularity and may he cured. (Holmes v. Staib Abendschein Co., Inc., 198 App. Div. 354.) Settle order.