Crane v. State
| Decision Date | 29 April 1968 |
| Docket Number | No. 9791,9791 |
| Citation | 289 N.Y.S.2d 521,29 A.D.2d 1001 |
| Parties | Russell CRANE et al., Respondents, v. STATE of New York, Appellant. Motion |
| Court | New York Supreme Court — Appellate Division |
Marketos, Rossi & Capecelatro, Vincent J. Rossi, Utica, for respondents.
Louis J. Lefkowitz, Atty. Gen., Carl Rosenbloom, Albany, for appellant.
Before HERLIHY, J.P., and REYNOLDS, AULISI, STALEY and GABRIELLI, JJ.
Appeal by the State from an order of the Court of Claims granting claimants' motion for permission to file a late claim pursuant to subdivision 5 of section 10 of the Court of Claims Act.
Claimant Alice Crane seeks to recover for personal injuries sustained on August 27, 1966 when she fell allegedly due to the negligent construction and maintenance by the State of a stone walk and platform used by persons aligting from boats at a boat landing site on Canadarago Lake. Her husband seeks damages for medical expenses and loss of his wife's services and wages.
Admittedly, no notice of intention was filed within the ninety day period prescribed by subdivision 3 of section 10 of the Court of Claims Act. Subdivision 5 of section 10 allows the Court of Claims to permit a late filing when the State has not been 'substantially prejudiced' if the claimant shows a reasonable excuse for the failure to file within the 90 day period; the State had actual knowledge of the facts which form the basis of the claim, and certain information required by section 11 accompanies the request. These requirements must be strictly construed because the question of timeliness of filing is jurisdictional (Bleeck v. State of New York, 184 Misc. 138, 51 N.Y.S.2d 894). Moreover the requirements of subdivision 5 are set out in conjunctive form and thus a failure to satisfy any of these requirements is fatal (see Schroeder v. State of New York, 252 App.Div. 16, 297 N.Y.S. 632, affd. 276 N.Y. 627, 12 N.E.2d 609; Williams v. State of New York, 21 A.D.2d 844, 250 N.Y.S.2d 793).
Here there is no dispute that the requirement as to the submission of the information required by section 11 has been complied with. However, we can find absolutely no showing 'that the state or its appropriate department had, prior to the expiration of the time limited for the filing of the notice of intention, Actual knowledge of the essential facts constituting the claim.' (Emphasis added.) (Court of Claims Act, § 10, subd. 5.) It is clearly improper to assume such Actual knowledge from the fact that the State owned and maintained the facility. Such a position would emasculate the clear language of the statute. Maintenance of a facility cannot of itself be deemed knowledge of the essential facts constituting a claim for personal injuries sustained on said facility. Synesael v. State of New York, 21 Misc.2d 234, 198 N.Y.S.2d 239 is clearly inapposite here. In Synesael the State's own affidavit supplied the requisite knowledge of the condition involved. Such is unquestionably not the case here.
Moreover, the brief affidavit submitted by the claimants does not in our opinion present a reasonable excuse of the delay in filing. Claimants assert in effect that because the claimant wife was in a wheel chair over fifty days and thereafter 'found it difficult to go out' a timely filing was excused. However, there is no assertion...
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