Opinion
November 5, 1970
Appeal from an order of the Court of Claims, entered August 15, 1969, which granted claimant permission to file a late claim pursuant to subdivision 5 of section 10 CTC of the Court of Claims Act. Claimant seeks damages for alleged false imprisonment and negligence. Her claim was clearly not timely filed, but the Court of Claims granted her permission pursuant to subdivision 5 of section 10 CTC of the Court of Claims Act, to file a late notice of claim. We cannot agree with this determination of the Court of Claims. We do not agree with appellant's contention that the bail cases (see Bomboy v. State of New York, 26 A.D.2d 974; Molyneaux v. County of Nassau, 22 A.D.2d 954, affd. 16 N.Y.2d 663) are controlling here. However, since the cause of action becomes complete the moment the detention ceases ( Dill v. County of Westchester, 4 A.D.2d 779; Tierney v. State of New York, 266 App. Div. 434, affd. 292 N.Y. 523), which was the moment claimant was discharged from convalescent status, claimant was not under a legal disability when her claim became "complete". It is evident from the instant record that the real reason claimant failed to file a timely notice of claim was not her disability but that she was unaware of the filing requirements. This, of course, is not a reasonble excuse for failure to file timely ( Crane v. State of New York, 29 A.D.2d 1001; Landry v. State of New York, 1 A.D.2d 934, affd. 2 N.Y.2d 927) and other reasons given by claimant are likewise insufficient. Serious physical injury or immobilization constitutes a reasonable excuse ( Callanan v. State of New York, 23 A.D.2d 937; Stabile v. State of New York, 12 A.D.2d 698; Elting v. State of New York, 8 A.D.2d 640), but a mere assertion by claimant that she did not have sufficient strength or stamina is clearly no excuse ( Crane v. State of New York, supra). Nor is her explanation that she consulted lawyers but was unable to find one who would represent her. If an attorney's illness ( Davis v. State of New York, 28 A.D.2d 609) or his inadvertence ( 500 Eighth Ave. Assoc. v. State of New York, 30 A.D.2d 1010) is not a sufficient excuse, an attorney's failure to accept a case cannot be considered a reasonable excuse. Moreover, claimant is charged with knowledge of the filing requirements, and she could have filed a claim herself. Order reversed, on the law and the facts, and motion denied, without costs. Herlihy, P.J., Reynolds, Greenblott, Cooke and Sweeney, JJ., concur. [ 61 Misc.2d 802.]