Turner v. State
| Decision Date | 30 November 1972 |
| Docket Number | No. 53751,53751 |
| Parties | Thomas M. TURNER, Appellant, v. STATE of New York, Respondent. Claim |
| Court | New York Supreme Court — Appellate Division |
Northrop, Jessop, Schnee, Berkowitz & Harris, West Haverstraw (Martin Schnee, West Haverstraw, of counsel), for appellant.
Louis J. Lefkowitz, Atty. Gen. (Kenneth J. Connolly, Albany, of counsel), for respondent.
Before HERLIHY, P.J., and STALEY, GREENBLOTT, SWEENEY and REYNOLDS, JJ.
Appeal from an order of the Court of Claims which denied claimant's motion for permission to file an amended claim to include a cause of action for damage to reputation, and for an order requiring the respondent to produce certain records of the Suffolk County District Attorney's Office.
Appellant's motion was properly denied and the order appealed from should, therefore, be affirmed. The late filing requirements of subdivision 5 of section 10 of the Court of Claims Act, which have been strictly construed (Bommarito v. State of New York, 35 A.D.2d 458, 317 N.Y.S.2d 581; Crane v. State of New York, 29 A.D.2d 1001, 289 N.Y.S.2d 521), require that the claimant show that a reasonable excuse exists for failure to file the claim timely; that the State had actual knowledge of the facts which form the basis of the claim prior to the expiration of time for filing; and that the proposed claim be filed, including certain information required by section 11. Furthermore, it must appear that the State has not been prejudiced by the late filing of the claim. The requirements of subdivision 5 of section 10 are conjunctive and, therefore, failure to satisfy any one of them is fatal (Bommarito v. State of New York, Supra; Crane v. State of New York, Supra). In the instant case not only has the appellant failed to provide any real excuse for his failure to file, much less a reasonable one, but he has failed to show that the State had actual knowledge of the facts constituting the claim prior to the expiration of the period for filing the claim. It cannot be assumed that the State had actual knowledge of the facts merely because it owned and maintained the facility (Crane v. State of New York, Supra). The fact that the State may have suffered no prejudice is immaterial where the other requirements of subdivision 5 of section 10 are not met (Bommarito v. State of New York, Supra; Crane v. State of New York, Supra). As to the records sought, the office of the District Attorney is...
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Kelly v. State
...timely. Because these requirements were conjunctive, it was held that the failure to satisfy any one of them was fatal (Turner v. State, 40 A.D.2d 923, 338 N.Y.S.2d 329). Under the amendment, however, these requirements are no longer cast in absolute terms, but are merely factors which "the......
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In re Bus, Civil No. 83-8
...of Claims Act existed at that time, demonstration of a "reasonable excuse" for late filing was mandatory. Turner v. State, 40 A.D.2d 923, 338 N.Y.S.2d 329 (N.Y. App. Div. 1972); Bommarito v. State, 35 A.D.2d 458, 317 N.Y.S.2d 581 (N.Y. App. Div. 1971); Crane v. State, 29 A.D.2d 1001, 289 N.......
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Leibowitz v. State
...subdivision 5, of section 10, are conjunctive and therefore, failure to satisfy any one of them is fatal, Turner v. State of New York, 40 A.D.2d 923, 338 N.Y.S.2d 329 (3rd Dept., 1972), regardless of whether or not the State will be prejudiced by granting the relief sought. Society of New Y......
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Berger v. State University of New York at Stony Brook
...of subdivision 5 of section 10 are conjunctive and, therefore, failure to satisfy any one of them is fatal." (Turner v. State of New York, 40 A.D.2d 923, 338 N.Y.S.2d 329 cf. Bommarito v. State of New York, 35 A.D.2d 458 and Crane v. State of New York, 29 A.D.2d 1001, 289 N.Y.S.2d 521.) Und......