Tippetts-Abbett McCarthy-Stratton v. New York State Thruway Authority

• Decision Date: 30 November 1962
• Docket Number: CARTHY-STRATTO,TIPPETTS-ABBETT-M,No. 34769,C,34769
• Citation: 17 A.D.2d 1025,234 N.Y.S.2d 453
• Parties: claimant-Respondent, v. The NEW YORK STATE THRUWAY AUTHORITY, Appellant. Claim
• Court: New York Supreme Court — Appellate Division

Page 453

234 N.Y.S.2d 453

17 A.D.2d 1025

TIPPETTS-ABBETT-McCARTHY-STRATTON, Claimant-Respondent, v. The NEW YORK STATE THRUWAY AUTHORITY, Appellant.

Claim No. 34769.

Supreme Court, Appellate Division, Third Department.

Nov. 30, 1962.

Louis J. Lefkowitz, Atty. Gen., Paxton Blair, Sol. Gen., for appellant.

Sylvester & Harris, Charles L. Sylvester, New York City, for claimant-respondent.

Before BERGAN, P. J., and GIBSON, HERLIHY and TAYLOR, JJ.

MEMORANDUM DECISION.

Appeal from an order of the Court of Claims.

Following our decisions in 15 A.D.2d 598, 222 N.Y.S.2d 821 and 17 A.D.2d 672, 229 N.Y.S.2d 1018 defendant Thruway Authority has renewed its motion in the Court of Claims to reopen the case to permit consideration of the letter from claimant of October 28, 1955. The motion has again been denied. We are of opinion a sufficient reason for appellant's failure to offer the letter on the trial has now been factually established.

The basis of our prior decision of affirmance (17 A.D.2d 672, 229 N.Y.S.2d 1018) was the absence of any proof of excusable ground why the exhibit was not produced on the trial. The exhibit itself is of significance in the case and has direct relevancy to the merits. In the interests of an adequate adjudication of the cause the exhibit ought to be before and considered by the Court of Claims. The delays caused by the failure of defendant and its counsel to present the exhibit at the trial have been substantial and the reconsideration of the case at the Court of Claims should be accelerated. The case should be given priority and placed on the calendar at the next calendar call succeeding notice of entry of the order on this appeal and promptly heard and determined.

Order reversed and motion granted without costs.