Bommarito v. State

• Decision Date: 14 January 1971
• Citation: 317 N.Y.S.2d 581,35 A.D.2d 458
• Parties: Charles BOMMARITO, Respondent, v. The STATE of New York, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 581

317 N.Y.S.2d 581

35 A.D.2d 458

Charles BOMMARITO, Respondent, v. The STATE of New York, Appellant.

Supreme Court, Appellate Division, Fourth Department.

Jan. 14, 1971.

Ruth Kessler Toch, Sol. Gen., Louis J. Lefkowitz, Atty. Gen., Albany (B. Lawrence Radlin, Albany, of counsel), for appellant.

Fiesinger & Rose, Little Falls (Edward J. Rose, Little Falls, of counsel), for respondent.

Before DEL VECCHIO, J.P., and MARSH, WITMER and HENRY, JJ.

OPINION

MARSH, Justice:

On September 7, 1969 claimant was stopped by a New York State Trooper for speeding, and during the course of the arrest, it is claimed that the trooper assaulted him. Subsequently, the trooper took him before a justice of the peace where he was charged with driving while intoxicated. After arraignment he was committed to the Herkimer County Jail where he remained until September 19, 1969 when he furnished bail.

The ninety-day period allowed for filing this claim under Court of Claims Act, § 10(3) expired on December 6, 1969. On December 9, 1969 claimant consulted an attorney and this motion for permission to file a late claim was made on December 16, 1969.

The Court of Claims Act § 10(5) allows the Court of Claims to permit a late filing of a claim when the State has not been substantially prejudiced if the claimant shows a reasonable excuse for the failure to file within the ninety-day period and the State had actual knowledge of the facts which form the basis of the claim. These requirements are set out in conjunctive form, and, therefore a failure to satisfy any of these requirements is fatal. (Crane v. State, 29 A.D.2d 1001, 289 N.Y.S.2d 521.) Since all of section 10 is jurisdictional in character, particularly the timeliness of filing, the provisions must be strictly construed. (Buckles v. State, 221 N.Y. 418, 117 N.E. 811; Dimovitch v. State, 33 A.D.2d 146, 307 N.Y.S.2d 26; Crane v. State, supra.)

Unless the claimant is able to establish a reasonable excuse, a motion for permission to file a late claim should be denied. (Landry v. State, 1 A.D.2d 934, 149 N.Y.S.2d 514, affd. 2 N.Y.2d 927, 161 N.Y.S.2d 889, 141 N.E.2d 919; Schroeder v. State, 252 App.Div. 16, 297 N.Y.S. 632, affd. 276 N.Y. 627, 12 N.E.2d 609.) The only excuse offered by claimant for his failure to file the claim within the ninety-day period is his incarceration in the County Jail for the first twelve days of the period. There is no allegation that claimant was unable to contact an attorney for the purpose of filing a claim during his twelve-day incarceration, nor is there any indication why claimant failed to file a claim within the seventy-eight days following his release. If claimant could contact an attorney three days after the ninety-day period had expired, there is no reason presented here why this could not have been done well within the period. Cf. Crane v. State, supra.

Claimant has also failed to make any showing that 'the State or its appropriate department had * * * actual knowledge of the essential facts constituting the claim.' (Court of Claims Act section 10(5).) He merely alleges an assault by a New York State Trooper. There is no allegation of actual knowledge othr than that of the alleged tort feasor himself. The purpose of requiring notice is to apprise the State of the claim and give it an opportunity to investigate. (Chalmers & Son v. State, 271 App.Div. 699, 68 N.Y.S.2d 827, affd. 297 N.Y. 690, 77 N.E.2d 8; McMahon v. State, 173 Misc. 1004, 19 N.Y.S.2d 639, affd. 261 App.Div. 879, 26 N.Y.S.2d 489.) Certainly this purpose would not be fulfilled if knowledge of the acts charged, imputed by claimant to the State employee, were to be considered actual knowledge of ...