Wolfe v. State, 48920

• Decision Date: 04 March 1968
• Docket Number: No. 48920,48920
• Citation: 57 Misc.2d 777,293 N.Y.S.2d 384
• Parties: John WOLFE, Claimant, v. The STATE of New York, Defendant. Claim
• Court: New York Court of Claims

Page 384

293 N.Y.S.2d 384

57 Misc.2d 777

John WOLFE, Claimant, v. The STATE of New York, Defendant.

Claim No. 48920.

Court of Claims of New York.

March 4, 1968.

[57 Misc.2d 778] Harvey & Harvey, Albany, for claimant; by James P. Walsh, Albany, of counsel.

Louis J. Lefkowitz, Atty. Gen., for the State; by Mordecai Bressler, Asst. Atty. Gen., of counsel.

DECISION

MILTON ALPERT, Judge.

This is a motion by the State for dismissal of the claim because it was not timely filed and a cross-motion by the claimant for permission, addressed to the Court's discretion, (Court of Claims Act, § 10, subd. 5), to file a claim for false arrest, abuse of process, assault and tortious conspiracy arising out of facts and circumstances which occurred on May 4, 1967.

The claimant was arrested at that time by narcotics enforcement officers of the State for alleged felony relating to alleged sale of narcotics, taken into custody and confined in jail until, the following day when he appeared before a Justice of the Peace, charged with a felony and then released on bail. A grand jury returned a no bill of indictment on July 20, 1967.

Under Court of Claims Act, § 10, subd. 3, a claim of this type or a written notice of intention to file such a claim must be filed within ninety days after the accrual thereof. Under the applicable case law, this claim accrued on May 5, 1967 when the claimant was released from jail (Huff v. State, 27 A.D.2d 892, 278 N.Y.S.2d 12; Bomboy v. State, 26 A.D.2d 974, 274 N.Y.S.2d 744). The ninety-day period expired on or about August 4, 1967. Claimant did not file a notice of intention until October 13, 1967 and his claim was not filed until November 16, 1967, both of which dates were approximately two months and three months, respectively, after the August 4, 1967 expiration of the statutory ninety-day period.

In a case of this type, in addition to other statutory requirements, reasonable excuse must be shown in order for the Court to exercise its discretion (Court of Claims Act, § 10, subd. 5; Landry v. State, 1 A.D.2d 934, 149 N.Y.S.2d 514, aff'd 2 N.Y.2d 927, 161 N.Y.S.2d 889, 141 N.E.2d 919).

The question accordingly arises as to whether such reasonable cause is shown by the claimant in his affidavit in support of his cross-motion. In such affidavit he states that his arrest and imprisonment 'was a severe shock and experience' to himself, his wife, and family; that he 'immediately did forego other activities and worked with his associates and his attorneys in an unceasing attempt to unravel the charges made' against him; that prior to the action of the grand jury on July 20, 1967 in returning a no bill of indictment against him, he 'was attempting to minimize the serious damage done to the business image' of his employer; that he was 'also in a state of mental anguish and upset because of the public and local reaction to the charges'; that after the return of the no bill of indictment he 'began his search for employment which took him out of the State of New York for extended periods of time'; and that it 'was because of the complete emotional and physical involvement' in the preparation of the defense to the charges against him and in the 'vain attempt to salvage to good name of his employer, while also shielding and comforting his wife and family, and thereafter beginning the task of overcoming the damage done' that he failed to file a claim with the Court within...