Davis v. State, 46577--M
| Decision Date | 22 May 1967 |
| Docket Number | No. 46577--M,M--9241,46577--M |
| Citation | 28 A.D.2d 609,279 N.Y.S.2d 986 |
| Parties | Rosalie DAVIS, an Infant, by Eula Mae Davis, Her Natural Parent and Guardian, Respondent, v. STATE of New York, Appellant. Claimotion |
| Court | New York Supreme Court — Appellate Division |
Louis J. Lefkowitz, Atty. Gen., Jean M. Coon, Albany, for appellant.
Moses M. Falk, New York City, for respondent.
Before GIBSON, P.J., and REYNOLDS, FELIX J. AULISI and STALEY, JJ., concur.
The State appeals from an order of the Court of Claims granting permission to the infant-claimant's father, Robert Davis, to file a late claim on his own behalf for alleged damages in a derivative action.
Claimant contends that any cause of action for damages sustained by the infant accrued on May 22, 1964 and that an attorney was thereafter retained who served a notice of intention to file a claim for the infant, by her mother, on August 27, 1964. No notice of intention or claim was filed at that time on behalf of the father for loss of services or for medical expenses. The claim for alleged negligence on behalf of the infant is not present, for her claim is preserved because of her infancy.
The application for permission to late file on behalf of the father individually was not made until March 24, 1966.
The moving papers show that the attorney became ill, did not return to his office until September, 1964 where he continued to practice at least until May, 1965. No satisfactory excuse has been shown why permission to late file was not made during this period. Nor is it satisfactorily explained why such was not done sometime during the period up to March 24, 1966.
The excuse proffered by claimant's attorney cannot be considered reasonable under the circumstances (Williams v. State, 46 Misc.2d 724, 260 N.Y.S.2d 780; Hotchkiss v. State, 206 Misc. 852, 853--854, 135 N.Y.S.2d 668, 669) and the court's discretion was improvidently exercised.
The record further reveals that movants have completely failed to show a meritorious cause of action and, in fact, have failed to allege negligence on the part of the State in either the proposed purported claim or notice of intention to file such. Under these circumstances any purported claim can be treated only as a notice of intention and not a claim (Weinstein v. N.Y.S. Thruway Authority, 27 Misc.2d 503, 212 N.Y.S.2d 243). Here, the application as filed was not accompanied by a proposed claim as required by section 10(5) of the Court of...
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