DeMarco v. State
| Decision Date | 06 December 1973 |
| Citation | 350 N.Y.S.2d 230,43 A.D.2d 786 |
| Parties | Frances DeMARCO, Respondent, v. The STATE of New York, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Louis J. Lefkowitz, Atty. Gen., Albany (Chamberlain, D'Amanda, Bauman, Chatman & Oppenheimer, Louis D'Amanda, Rochester), for appellant.
Joseph G. Caito, Geneva, for respondent.
Before MARSH, J.P., and WITMER, CARDAMONE, SIMONS and HENRY, JJ.
On February 11, 1971 claimant was involved in an automobile accident with a vehicle owned by the State and driven by one of its employees. Within a week, claimant retained counsel who immediately contacted a representative of the insurance company which insured the State-owned vehicle. Nothing was done thereafter during the ninety-day period provided for the filing of a claim against the State (Ct. of Claims Act, section 10) although there were subsequent conversations between the claimant's attorney and the adjustor employed by the State's insurance carrier with respect to this claim commencing on July 19, 1971. An application to file a late notice of claim was made in February, 1973 within a few days of the time when this claim would have been permanently barred by the two-year statute of limitations (Ct. of Claims Act, section 10(3)). Section 10 of the Court of Claims Act provides that the timeliness of filing and it jurisdictional prerequisite to making a claim against the State and it must, therefore, be strictly construed (Bommarito v. State of New York, 35 A.D.2d 458, 459, 317 N.Y.S.2d 581, 582). Subdivision 5 of section 10 of the Act permits the court to grant an application for late filing, in its discretion, when claimant satisfactorily demonstrates: (1) a reasonable excuse for not filing within ninety days; (2) that the State, prior to the expiration of ninety days after the claim arose, had actual knowledge of the essential facts constituting the claim; and (3) that the State has not been substantially prejudiced by the delay in filing the claim. These requirements are stated conjunctively, hence, a failure to satisfy any one of them mandates the denial of the application for late filing (Crane v. State of New York, 29 A.D.2d 1001, 1002, 289 N.Y.S.2d 878). The only reason advanced by claimant for failure to file timely was that she was lulled into a false sense of security by the actions and conduct of the State's insurance adjustor. The Trial Court specifically found, however, that the insurance adjustor had...
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