SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FOURTH DEPARTMENT
May 9, 1968
ERNESTINE M. HARD, DEPUTY COUNTY TREASURER OF THE COUNTY OF ORLEANS, AS ADMINISTRATRIX OF THE ESTATE OF RAYMOND E. GROSE, DECEASED, RESPONDENT,
STATE OF NEW YORK, APPELLANT
Appeal from order of Court of Claims denying motion to dismiss claim.
Williams, P. J., Del Vecchio, Marsh, Witmer and Henry, JJ.
Memorandum: There was nothing before the Court of Claims Judge that afforded a basis for permitting the filing of the claim. The opinion seems to be based almost entirely on lack of prejudice, which, of course, is not the standard to be employed. The attorney of record for the claimant states in an affidavit that he called the office of the Attorney-General and was advised that, if he would deposit his claim in a United States post office on the last available date, that would be sufficient. He does not say whom he called, the authority or position held by the person to whom he talked. In any event, it is very doubtful that anyone in the Attorney-General's office would have the right to waive the statute. But certainly a loosely worded affidavit of the type submitted would be insufficient to show such a waiver. Nor is the fact that notice of the original claim was sent by registered mail effective to constitute a compliance with the statute. (See Green v. State of New York, 28 A.D.2d 747; Wheeler v. State of New York, 285 App. Div. 1008; Mercado v. State of New York, 29 A.D.2d 579.)
Order unanimously reversed, without costs, and claim dismissed.
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