The opinion
Stevens, P. J.
(dissenting). I dissent and vote to affirm the judgment which is. here .appealed. The -single issue whether petitioner should be allowed to file a late notice of claim, finds its answer in the language of the applicable statutes. Section 3813 of the Education ¡Law and section 50-e of the General Municipal Law require the filing or presentation of a notice of claim within 90 days after the occurrence upon which the claim is^ premised. Since the incident complained of happened in a classroom and involved the Board of Education and a school district in the'City of New.. York, it was requisite that the claim be served upon the Board of Education. (See -General Municipal Law, § -50-e, subd. 3.) Where, as here, an infant is involved, the 90-day requirement is not absolute. The statute permits the court, in its discretion, to grant leave for the filing- of a late notice of claim “ (1) Where the claimant is an infant, or is mentally or physically incapacitated, and by reason of such disability fails to serve a notice of claim within the time specified.” (General Municipal Law, § 50-e, subd. 5; emphasis supplied.)
On this, record there is .pothing to establish the fact or even to indicate that infancy caused or contributed to the failure to serve a notice of claim. (Santiago v. Board of Educ. of City of N. Y., 41 A D. 2d 616.)
Under the circumstances prevailing the rule may seem to be, and perhaps is, a harsh one. The entity served, the. City of New York, is separate and distinct from that one required to be served, namely, the Board of Education. In light of the exist *253 ing relationship between the two, it would not be an unreason-, able extension to permit service upon the City of New York to be considered the equivalent of service upon the Board of Education. That remedy, however, should come from the Legislature and not be achieved by judicial fiat.
I am aware of divergent results in the various departments upon facts similar to those presented.here (see Matter of Murray v. City of New York, 30 N Y 2d 113; Birnbaum, Civil Practice, 24 Syracuse L. Rev. 447 ), but this department always required some factual demonstration of causation between infancy and the failure to file within the statutory period.
The statute by its language does not permit an unfettered discretion. Nor do I find ambiguity or imprecision in its language. An asserted knowledge of the facts by the entity sought to be held is not the equivalent of compliance with the statutory requirement.
Nunez and Murphy, JJ., concur with Capozzoli, J. ; Stevens, P. J., dissents in an opinion in which Steuer, J., concurs.
Judgment, Supreme Court;. Bronx County, entered on September 12; 1973, reversed, on the law, the facts and in the exercise of discretion,, without costs and without disbursements, and vacated,, and the application, granted.