42 A.D.2d 912 | N.Y. App. Div. | 1973
In a negligence action to recover damages for personal injuries sustained by the infant plaintiff and for her mother’s medical expenses and loss of services, defendant appeals from a judgment of the Supreme Court, Rockland County, entered December 21, 1971, in favor of plaintiffs, upon a jury verdict. Judgment reversed, on the law, and new trial granted, with costs to abide the event. The appeal did not present questions of fact. The infant plaintiff sustained her injuries when her ankle was crushed while she was playing on a see-saw during a scheduled school recreation period. The case comes to us on an agreed statement of facts in lieu of a record on appeal, pursuant to CPLR 5527. In pertinent part the statement sets forth that the accident occurred on September 30, 1963; that a complaint was served on December 23,1964; and that an answer, which alleged the affirmative defenses of lack of jurisdiction and failure to timely bring the action, was served on January 14, 1965. The complaint did not contain any allegation that 30 days had elapsed since service of the notice of claim as required by section 50-i of the General Municipal Law. The defect was not a jurisdictional one and we deem the complaint amended to plead timely service of the notice of claim (see Cochrane v. Town of Gates, 18 A D 2d 1048). However, the paucity of the statement of facts leaves unanswered the questions (a) if and when the notice of claim was served, (b) whether defendant breached its duty of supervision and (c) whether such negligence, if any, was the proximate cause of the infant plaintiff’s injuries. It is clearly impossible to review these issues without an examination of all the pertinent.proof and the parties’ statement of facts is completely wanting in that regard. Munder, Acting P. J., Martuscello, Latham, Gulotta and Brennan, JJ., concur.
