Kullman v. State

• Decision Date: 30 June 1965
• Docket Number: Nos. M-8474,M-8522,s. M-8474
• Citation: 46 Misc.2d 873,261 N.Y.S.2d 157
• Parties: Doris L. KULLMAN, Individually and as Temporary Administratrix Petitioner of the Goods, Chattels and Credits of Earl Q. Kullman, Deceased, Claimant, v. The STATE of New York, Defendant.
• Court: New York Court of Claims

Page 157

261 N.Y.S.2d 157

46 Misc.2d 873

Doris L. KULLMAN, Individually and as Temporary Administratrix Petitioner of the Goods, Chattels and Credits of Earl Q. Kullman, Deceased, Claimant, v. The STATE of New York, Defendant.

Claim Nos. M-8474, M-8522 Court of Claims of New York.

June 30, 1965.

Kirlin, Campbell & Keating, New York City (by James R. Campbell, New York City, of counsel), for claimant, in support of motions.

Louis J. Lefkowitz, Atty. Gen. of State of New York (by Asst. Atty. Gen., Dace Epermanis, of counsel), in opposition.

CAROLINE K. SIMON, Judge.

Doris L. Kullman individually and in her capacity as temporary administratrix of the goods, chattels and credits of her late husband, Earl Q. Kullman, seeks leave of this Court to file a late claim pursuant to § 10, subd. 5 of the Court of Claims Act. In furtherance of said application, the petitioner seeks to examine the defendant before trial for the avowed purpose of establishing '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.' (§ 10, subd. 5).

Since disposition of petitioner's motion to examine the defendant will be dispositive of petitioner's application for leave to file a late claim, as will become apparent from the factual findings to follow, these motions have been consolidated for decision.

Petitioner's counsel's uncontroverted factual recitals contained in his affidavit in support of the application for late filing establish that on August 26, 1964, the late Earl Q. Kullman and Doris L. Kullman were in a vehicular accident at the intersection of Roslyn Road and Powerhouse Road, East Hills, Nassau County, which accident resulted in the infliction of personal injuries and conscious pain and suffering upon Doris and Earl Kullman and property damage to their vehicle and other personal effects. The accident was alleged to have been caused by the existence of a non-operative traffic signal light at the intersection, which in turn caused a vehicle driven by one Charles Dziombe to collide with the Kullman automobile.

On November 13, 1964 petitioner and her husband filed a notice of claim with the County of Nassau, which filing was within the ninety-day period required by the local law of that county to institute timely suit. Thereafter, on February 11, 1965, plaintiffs in the county action examined the District Supervisor of the Long Island Lighting Company, who indicated that his employer was billing Nassau County for the power furnished the traffic light in question, thereby confirming counsel's belief that the County of Nassau was the owner of the traffic light and thus properly sued.

It was not until April 27, 1965, after filing of a formal complaint against the County, that the County in its verified answer for the first time denied ownership and control over the particular traffic light. The office of defendant's County Attorney furnished an affidavit of the Commanding Officer of the Traffic Safety Division of the Nassau County Police Department to establish that the traffic light was owned, operated and controlled by the State of New York.

The Attorney General, in opposing the instant application, did not deny ownership or control of the traffic signal, but argued that petitioner had failed to establish 'actual knowledge of the essential facts constituting the claim' in conformity with the requirements of law. No specific objection was made on the ground that petitioner had failed to establish a reasonable excuse for its failure to file within the ninety-day period set forth in § 10, subd. 3 of the Act. In that connection, the Court finds that under the facts and circumstances heretofore recited, petitioner's timely institution of suit against the County of Nassau in the mistaken belief that the county was the proper party defendant constitutes a reasonable excuse so as to satisfy the statute in that regard. Matter of Gross v. State of New York, 9 A.D.2d 594(72), 189 N.Y.S.2d 522; Matter of Lebensfeld v. State of New York, 14 Misc.2d 936, 180 N.Y.S.2d 386.

The Court further finds that on the basis of the papers submitted, petitioner has failed to establish the requisite 'actual knowledge' on the part of the State or its appropriate department which constitutes an independent requirement essential to enable the Court to exercise its discretionary authority and grant the instant application. The only recital contained in counsel's supporting affidavit pertinent to this requirement is the statement that the 'traffic signal lights at the intersection of Roslyn Road and Powerhouse Road were not in operation, and had not been in operation for some time prior to this which caused a collision between the Kullman automobile and an automobile driven by one Charles Dziombe, which was proceeding eastward on Powerhouse Road.' (Affidavit of James R. Campbell, Esq., page 1, lines 16 through 19, inclusive and page 2, lines 1 and 2, inclusive). The affidavit is devoid of any recital that the State either had actual knowledge that the traffic light was defective on the accident date or within ninety days thereafter or that an accident involving the petitioner had in fact taken place at the intersection in question on that date due to the inoperative signal. On the basis of the foregoing determinations the Court would be constrained to deny the instant application.

The conceded lack of proof in affidavit form in regard to defendant's 'actual knowledge' on the date in question or within ninety days of the happening of the accident resulted in the filing of petitioner's subsequent motion to...