Lewis v. State, 57736
| Decision Date | 08 December 1977 |
| Docket Number | No. 57736,57736 |
| Citation | 60 A.D.2d 675,399 N.Y.S.2d 947 |
| Parties | Ethel LEWIS et al., Appellants, v. STATE of New York, Respondent. (Claim) |
| Court | New York Supreme Court — Appellate Division |
Sherman, Levine, Feinberg & Perlman, Brooklyn (Michael H. Feinberg, Brooklyn, of counsel), for appellants.
Louis J. Lefkowitz, Atty. Gen. (Peter J. Dooley, Albany, of counsel), for respondent.
Before GREENBLOTT, J. P., and MAIN, LARKIN, MIKOLL and HERLIHY, JJ.
Appeal from an order of the Court of Claims, entered May 16, 1975, which granted defendant's motion to dismiss the claim.
Alleging that, on October 19, 1972, an individual in the custody of defendant assaulted the female claimant herein in the course of an escape attempt at the Kings County Supreme Court Building, claimants commenced the present action against the State based upon its alleged negligence in failing to control the assailant. On January 18, 1973, they filed with the Clerk of the Court of Claims a Notice of Intention to file a claim, and on July 26, 1973, they filed a claim for $31,320. Subsequently, on January 31, 1975, the State moved to dismiss the claim on the ground that it was not timely filed, and claimants cross-moved for an order permitting them to amend their claim so as to allege that the cause of action accrued on June 28, 1973, the date on which the female claimant received her last medical treatment for the injuries resulting from the alleged assault. They also sought an order granting them "such other and further relief as to this Court may seem just and proper", but their cross-motion was denied in all respects. Holding that the filing was untimely, the court granted the State's motion and dismissed the claim.
On this appeal, we find that the order dismissing the claim must be reversed. Claimants' cause of action plainly accrued at the time of the alleged assault on October 19, 1972 rather than after medical treatment was completed on June 28, 1973 (DeGroff v. State of New York, 43 A.D.2d 993, 352 N.Y.S.2d 253), and, consequently, their Notice of Intention to file a claim was filed one day late, i. e., 91 days after the accrual of the claim (Court of Claims Act, § 10, subd. 3). Nonetheless, in our view, the peculiar and compelling circumstances of this case mandate that claimants be permitted to file late and that the Notice of Intention and the claim, filed on January 18, 1973 and July 26, 1973 respectively, be considered valid.
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Lewis v. State
...to dismiss the claim. The instant claim was previously before this court and the pertinent facts are set forth in Lewis v. State of New York, 60 A.D.2d 675, 399 N.Y.S.2d 947. In our earlier decision we reversed the order of the Court of Claims and ruled that the claim should be accepted by ......
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Paul v. State
...court's order denying their motion, claimants now argue that our earlier decisions in Paul v. State of New York (supra) and Lewis v. State of New York, 60 A.D.2d 675, 399 N.Y.2d 947 are controlling in their situation and that, in accordance therewith, subdivision 6 must be retrospectively a......
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Sessa v. State
...claimants now argue that our earlier decisions in Paul v. State of New York, 59 A.D.2d 800, 398 N.Y.S.2d 768 and Lewis v. State of New York, 60 A.D.2d 675, 399 N.Y.S.2d 947, are controlling in their situation and that, in accordance therewith, subdivision 6 must be retrospectively applied t......