Barski v. State, 57437
| Decision Date | 20 December 1973 |
| Docket Number | No. 57437,57437 |
| Citation | 43 A.D.2d 767,350 N.Y.S.2d 762 |
| Parties | Lawrence BARSKI, Respondent, v. STATE of New York, Appellant. Claim |
| Court | New York Supreme Court — Appellate Division |
Oliver & Scully, Albany (Arthur F. McGinn, Jr., Albany, of counsel), for respondent.
Louis J. Lefkowitz, Atty. Gen. (Richard L. McHale, Albany, of counsel), for appellant.
Before STALEY, J.P., and GREENBLOTT, SWEENEY, KANE and MAIN, JJ.
Appeal from an order of the Court of Claims, entered April 10, 1973, which granted claimant's motion to treat his notice of intention of file a claim as a claim.
On June 23, 1970, claimant was injured in a one car accident at about 2:45 A.M. while driving on Route 9N in Warren County. His injuries included fractures of three vertebrae resulting in his becoming a paraplegic. A notice of intention to file a claim was filed on his behalf on August 31, 1970, but his formal claim was not filed within two years after the accrual of his claim as provided by section 10 of the Court of Claims Act.
In the month of March, 1973, claimant moved to have the notice of intention to file a claim treated as a claim or, in the alternative, for leave to file a late claim. On April 10, 1973, the Court of Claims granted the motion to treat the notice of intention as a claim, and that the same be amended to set forth the amount claimed as damages.
The State appeals from that order contending that the notice does not contain sufficient facts to state a cause of action, in that it does not state the specific acts of negligence chargeable to the State, the duty owed by the State to claimant, claimant's freedom from contributory negligence, and the amount claimed.
Section 11 of the Court of Claims Act provides, insofar as it is pertinent, as follows:
The notice filed by claimant set forth all of the items required by section 11 to be stated in a claim, except the total sum claimed. It was, however, set forth therein that the amount of claimant's expenses were not yet known, and that he was expected to be hospitalized for many months to come.
In Chalmers & Son, Inc. v. State of New York, 271 App.Div. 699, 701, 68 N.Y.S.2d 827, 830, affd., 297 N.Y. 690, 77 N.E.2d 8, which involved a similar situation, except that there the notice set forth the damages claimed, this court said: ...
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