Opinion
June 27, 1949.
Joseph Greenberg for claimant.
Nathaniel L. Goldstein, Attorney-General ( Arthur I. Seld of counsel), for defendant.
This is an application pursuant to subdivision 5 of section 10 CTC of the Court of Claims Act (L. 1939, ch. 860), for permission to file a claim. By reason of the filing of a claim by Leslie Dunn, Claim No. 29486, filed March 26, 1949, and preceded by a notice of intention filed January 27, 1949, we believe that the State of New York has not been prejudiced by the delay in filing claim or notice of intention by Betty Jean Koonz. It appears that she was the driver of an automobile which collided with an automobile driven by Leslie Dunn. The defendant has had full opportunity to investigate the accident and its cause.
However, Betty Jean Koonz has not presented a reasonable excuse for failure to file her claim within ninety days. The accident occurred on October 31, 1948, and on November 10, 1948, there was filed with the Motor Vehicle Bureau a report of the accident. This report was signed Betty Jean Koonz by Joseph Greenberg, attorney. Mr. Greenberg is her present attorney upon this motion. It would have been a simple matter for him to file a notice of intention on behalf of his client within ninety days. It does not appear that the physical injuries sustained by Betty Jean Koonz were of such nature or consequence that she was physically or mentally incapacitated to the extent that she could not seek or acquire information as to her rights within ninety days after the accident. ( Schaefer v. State of New York, Claim No. 22338 [1935], affd. 247 A.D. 833; Tedesco v. State of New York, 172 Misc. 851; Baxter v. State of New York, 189 Misc. 525; Gargano v. State of New York, Motion No. 1339 [1947].) In Toof v. State of New York (Motion No. 544 [1940], revd. 260 A.D. 830, affd. 286 N.Y. 620) the record discloses an affidavit by the claimant that he sustained injuries to his head and that several months elapsed before his mind cleared. No parallel facts are disclosed in this application. The Toof case ( supra) is not an authority for granting this motion. Motion denied. Enter order accordingly.