Hard v. State

Appellate Division of the Supreme Court of New York

Hard v. State

30 A.D.2d 631, 290 N.Y.S.2d 429, 1968 N.Y. App. Div. LEXIS 4058

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMay 9, 1968

DocketClaim No. 45654

StatusPublished

Cited by4 cases

This text of 30 A.D.2d 631 (Hard v. State) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Hard v. State, 30 A.D.2d 631, 290 N.Y.S.2d 429, 1968 N.Y. App. Div. LEXIS 4058 (N.Y. Ct. App. 1968).

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Opinion

Order unanimously reversed, without costs, and claim dismissed. Memorandum: There was nothing before the Court of Claims Judge that afforded a basis for permitting the filing of the claim. The opinion seems to be based almost entirely on lack of prejudice, which, of course, is not the standard to be employed. The attorney of record for the claimant states in an affidavit that he called the office of the Attorney-General and was advised that, if he would deposit his claim in a United States post office on the last available date, that would be sufficient. He does not say whom he called, the authority or position held by the person to whom he talked. In any event, it is very doubtful that anyone in the Attorney-General’s office would have the right to waive the statute. But certainly a loosely worded affidavit of the type submitted would be insufficient to show such a waiver. Nor is the fact that notice of the original claim was sent by registered mail effective to constitute a compliance with the statute. (See Green v. State of New York, 28 A D 2d 747; Wheeler v. State of New York, 285 App. Div. 1008; Mercado v. State of New York, 29 A D 2d 579.) (Appeal from order of Court of Claims denying motion to dismiss claim.) Present — Williams, P. J., Del Vecchio, Marsh, Witmer and Henry, JJ.

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Order unanimously reversed, without costs, and claim dismissed. Memorandum: There was nothing before the Court of Claims Judge that afforded a basis for permitting the filing of the claim. The opinion seems to be based almost entirely on lack of prejudice, which, of course, is not the standard to be employed. The attorney of record for the claimant states in an affidavit that he called the office of the Attorney-General and was advised that, if he would deposit his claim in a United States post office on the last available date, that would be sufficient. He does not say whom he called, the authority or position held by the person to whom he talked. In any event, it is very doubtful that anyone in the Attorney-General’s office would have the right to waive the statute. But certainly a loosely worded affidavit of the type submitted would be insufficient to show such a waiver. Nor is the fact that notice of the original claim was sent by registered mail effective to constitute a compliance with the statute. (See Green v. State of New York, 28 A D 2d 747; Wheeler v. State of New York, 285 App. Div. 1008; Mercado v. State of New York, 29 A D 2d 579.) (Appeal from order of Court of Claims denying motion to dismiss claim.) Present — Williams, P. J., Del Vecchio, Marsh, Witmer and Henry, JJ.

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Bluebook (online)

30 A.D.2d 631, 290 N.Y.S.2d 429, 1968 N.Y. App. Div. LEXIS 4058, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hard-v-state-nyappdiv-1968.

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