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500 EIGHTH AVE. ASSOCIATES ET AL. v. STATE NEW YORK (10/22/68)

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, THIRD DEPARTMENT


October 22, 1968

500 EIGHTH AVE. ASSOCIATES ET AL., RESPONDENTS,
v.
STATE OF NEW YORK, APPELLANT

Gibson, P. J., Herlihy, Reynolds, Aulisi and Staley, Jr., JJ., concur in memorandum Per Curiam.

Author: Per Curiam

Appeal from an order of the Court of Claims permitting claimants to file a late notice of claim. The claim is for fire damage which occurred on March 10, 1966 to premises rented by claimants to the State Division of Employment. In support of their application for permission to file a late notice of claim (Court of Claims Act, § 10, subd. 5), claimants' attorney served an affirmation stating that on June 1, 1966 a notice of intention to file claim was served upon the Division of Employment but that "affirmant's office inadvertently failed" to file the notice with the Clerk of the Court of Claims (Court of Claims Act, § 11) and that on March 1, 1967 a notice of claim was served upon the Attorney-General but that "Again the party handling this file neglected to file a copy * * * with the Clerk's office". Under subdivision 5, above referred to, a claimant's application must show, among other things, "a reasonable excuse for the failure to file". If we were to indulge the doubtful assumption that the conclusory allegation that the attorney "inadvertently" failed to file constitutes an "excuse", we would be obliged to hold that an attorney's inadvertence is not a "reasonable excuse". (Landry v. State of New York, 1 A.D.2d 934, affd. 2 N.Y.2d 927; Crane v. State of New York, 29 A.D.2d 1001; Fenimore v. State of New York, 28 A.D.2d 626; Hall v. State of New York, 28 A.D.2d 1034.)

Disposition

Order reversed, on the law and the facts, application denied and claim dismissed; without costs.

19681022

© 1998 VersusLaw Inc.



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