Opinion
May 4, 1972
Order, Court of Claims, entered on May 7, 1971, affirmed, without costs. No opinion. Staley, Jr., J.P., Sweeney and Simons, JJ., concur; Cooke and Kane, JJ., dissent and vote to reverse in the following memorandum by Kane, J. I believe that a reasonable excuse for failure to timely file the claim has been presented. Claimant's attending physicians stated in their affidavits that he was totally disabled for a period of two months after the accident, and one doctor stated further that he was not physically or emotionally able to function normally and was unable to pursue a lawsuit or any other type of claim due to his personal injuries. These conclusions are supported by the serious injuries sustained by claimant, and provide a basis for finding that those injuries should be accepted as a reasonable excuse for not filing the claim on time ( 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; Crofut v. State of New York, 279 App. Div. 681, affd. 303 N.Y. 897; Rugg v. State of New York, 278 App. Div. 216, revd. on other grounds 303 N.Y. 361). As to notice, the State does not claim any prejudice resulting from claimant's delay in filing the claim. The order appealed from should be reversed.