153 Misc. 212 | New York Court of Claims | 1934
This is a motion by the State to dismiss this claim for personal injuries to claimant on November 9, 1932, while
In Winter v. City of Niagara Falls (190 N. Y. 198), where a charter required that a claim for personal injuries founded on negligence must be presented within thirty days, it was held that it was not a statute of limitations, the running of which would be suspended during infancy, the court also saying (at p. 203): “ To require the presentation of a claim within a specified time is quite a reasonable provision; inasmuch as thereby the municipality is afforded a measure of protection against stale claims, or the possible connivance of corrupt officials. It permitted an investigation into the occurrence to be had at a time when the evidence relating to it might more readily be collected.”
To the same effect is Murphy v. Village of Fort Edward (213 N. Y. 397). I can see no distinction between the notice described in the cases cited and the notice of intention to file a claim required by the Court of Claims Act and the conclusion is inescapable, therefore, that section 12-a of the Court of Claims Act must be complied with, unless it is alleged and proved that claimant is unable to so comply.
No reason has been shown except imprisonment as an excuse for claimant’s failure to comply with the statute. So far as appears, he was not unable physically or mentally to make a claim, nor does it appear that he was in any way interfered with in so doing. In the absence of proper allegations in the claim and proof of the same, excusing claimant’s failure, the claim must be dismissed. Upon this point attention is again called to the case of Winter v. City of Niagara Falls {supra), in which the court said: “ The provision is not so rigid as to be beyond a construction, which admits of a substantial compliance with its requirement, or of an excuse
The State has waived its immunity from liability in those cases only in which the statute has been complied with. In Buckles v. State of New York (221 N. Y. 418, 424) it was said: " The State cannot be sued without its consent and it has the right, in authorizing the maintenance of proceedings for the recovery of claims against it, to impose such terms and conditions and to prescribe such procedure as its legislative body shall deem proper. The conditions imposed become jurisdictional facts and determine the status and right of the litigant.”
The motion is granted and an order may be submitted accordingly.