Farnham v. State, Motion No. 1608

Motion No. 1608 | New York Court of Claims | Jun 27, 1949

Ryan, J.

This is an application for permission to file a claim pursuant to subdivision 5 of section 10 of the Court of Claims Act (L. 1939, ch. 860). We believe the moving affidavits spell out a mistake of fact on the part of claimant’s attorney. Perhaps claimant’s attorney could have been more diligent in making his inquiries and might have sooner learned that the State of New York and not the City of Dunkirk constructed and maintained the highway at the scene of the accident. However, under all the circumstances it appears to us that the excuse is reasonable.

The statement that the resident engineer of the State had knowledge of the accident within two or three weeks after it occurred and that the State remedied the condition complained of is not controverted. It appears, therefore, that the State has not been prejudiced by the delay.

As his proposed claim claimant resubmits the pleading heretofore filed, verified February 25,1949, and filed March 16,1949. TMs pleading states a cause of action. We see no need of again printing the claim or refiling twelve copies thereof. , One copy should be refiled, however, in order that a new number may be assigned to it and the clerk’s records completed and one copy - should be served on the Attorney-General, within ten days from entry of the order granting permission to file. Submit order.