Weinstein v. New York State Thruway Authority

• Decision Date: 29 September 1960
• Docket Number: No. 35513,35513
• Citation: 27 Misc.2d 503,212 N.Y.S.2d 243
• Parties: Dorothy WEINSTEIN, Claimant, v. NEW YORK STATE THRUWAY AUTHORITY. Claim
• Court: New York Court of Claims

Page 243

212 N.Y.S.2d 243

27 Misc.2d 503

Dorothy WEINSTEIN, Claimant, v. NEW YORK STATE THRUWAY AUTHORITY.

Claim No. 35513.

Court of Claims of New York.

Sept. 29, 1960.

Gleason, Fitzpatrick, O'Connor & O'Brien, Buffalo, Raymond V. O'Connor, Buffalo, of counsel, for claimant.

Louis J. Lefkowitz, Atty. Gen., Joseph F. Conway, Buffalo, Thomas T. Basil, Asst. Atty. Gen., and Robert E. Miller, Buffalo, of counsel, for the New York State Thruway Authority.

BERNARD RYAN, Presiding Judge.

Dorothy Weinstein was the owner of an automobile which on January 17, 1958, in her absence but with her consent, was driven by her husband, Simon Weinstein. The automobile was in collision with a vehicle to which was attached a snowplow. The damage to the automobile has been stipulated at $428.18. The vehicle with the snowplow was owned by the Thruway Authority and was operated by its employee.

On April 15, 1958 Dorothy Weinstein caused to be filed with the Clerk of the Court of Claims a verified document purporting to be a claim against the New York State Thruway Authority. This document recited the foregoing facts and also stated the particular place where the collision occurred.

An examination of the document discloses that it is merely an assertion of a claim similar to that which would be given to a municipality under General Municipal Law, § 50-e. There is in the document no allegation of negligence on the part of the Thruway Authority and no allegation that the claimant was free from contributory negligence. In any view of its recitals the most that can be said for it is that it is a Notice of Intention to file a claim. No claim containing allegations necessary to state a cause of action was ever filed by Dorothy Weinstein. The ninety days made available to her by Court of Claims Act, § 10, subdiv. 3, and § 11 to file such a pleading has long since passed.

We are aware that the title to a pleading is not the determinative factor in considering how it should be construed. Chalmers & Son v. State, 1947, 271 App.Div. 699, 68 N.Y.S.2d 827, affirmed 297 N.Y. 690, 77 N.E.2d 8. In that case a paper called a Notice of Intention was construed to be a claim against the State, i. e., a proper pleading in the nature of a complaint. It alleged the backing up of Barge Canal waters and the overflow upon claimant's property, the Canal being in the control of the State. The nature of the action was in trespass. On the other hand the document here before us, while entitled Notice of Claim, does not meet the test of a good and sufficient pleading. Apropo v. State, 1936, 161 Misc. 142, 291 N.Y.S. 271, affirmed 252 App.Div. 803, 298 N.Y.S. 839; Grant v. State, 1948, 192 Misc. 45, 77 N.Y.S.2d 756.

However, through clerical error the document was given a claim number and assigned a calendar number and the claimant, by her attorney, came before the Court upon the trial of the claims of George M. Templeton, No. 35491 and Simon Weinstein, No. 35492. The said persons were, respectively, the passenger in Dorothy Weinstein's automobile at the time of the collision and her husband, the driver thereof.

Although the Attorney General did not avail himself of any motion addressed to the pleading, or to strike the alleged claim from the calendar, or any other remedies which he might have used, this Court nevertheless is confronted with the fact that Dorothy Weinstein is not properly before it as a claimant. During the trial of the issues the Court called the attention of counsel for Dorothy Weinstein to this situation but h...