Apropo v. State

161 Misc. 142, 291 N.Y.S. 271, 1936 N.Y. Misc. LEXIS 1480

• Court: New York Court of Claims
• Decided: November 23, 1936
• Docket: Claim No. 24417
• Status: Published

Opinion

Greenberg, J.

This is an application for an order allowing the claimant to file his claim against the State. The alleged cause of action is to recover damages for personal injuries sustained by claimant by being struck by an automobile operated by. a State trooper on the 24th day of December, 1935. The claimant failed to file a notice of intention to file a claim, or his claim, within sixty days from the date of accrual of said cause of action, and now seeks to be relieved of his failure to properly file his claim in accordance with section 12-a of the Court of Claims Act. Claimant invokes section 15 of the Court of Claims Act, as added by chapter 775 of the Laws of 1936, which went into effect on May 28, 1936.

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While it may be true, as set forth in the affidavits submitted in support of the motion, that the State had full knowledge of the alleged accident on the day it occurred, and that the Attorney-General received a report of same four days later, so that the State may have not been prejudiced, and that the State was advised of the accident within sufficient time to properly investigate same, yet the excuse offered by the claimant for not having filed his claim or a notice of intention to file the same, within time, is not such as to entitle the claimant to be relieved of his failure to comply with the statute then in effect.

Furthermore, the claim, which the moving party has attached to the motion papers, fails to allege a cause of action against the State, in that it does not allege claimant’s freedom from contributory negligence or its equivalent, that the State’s negligence was the cause of the accident. (Hartman v. Lowenstein, 90 Misc. 686, 690.)

The motion is denied; submit order accordingly.

Former section 15 was repealed by Laws of 1936, chapter 775.