Opinion
June 11, 1964
Appeal from the Court of Claims.
Present — Williams, P.J., Bastow, Henry, Noonan and Del Vecchio, JJ.
Order unanimously reversed, without costs of this appeal to either party, and motion denied, without costs. Memorandum: The record herein presents no "reasonable excuse for the failure to file the notice of intention" within the meaning of subdivision 5 of section 10 CTC of the Court of Claims Act. The accident which resulted in injuries to respondent and the death of the testator represented by him occurred on February 26, 1963. Claimant was appointed executor on April 23, 1963. Respondent alleges that his injuries prevented him from consulting with an attorney and taking the necessary steps to proceed against the State. This contention is buttressed by an affidavit of his physician that respondent was "dazed, confused and unstable emotionally for a period of time from February 26th until sometime in July of 1963". But the proof submitted by appellant discloses that on May 14, 1963 at a motor vehicle hearing relating to the same accident claimant testified that as far as he knew his general physical condition was perfect. We conclude that the granting of permission to file a claim by respondent as executor some six months after his appointment as such representative of the estate and as to his individual claim approximately eight months after the happening of the accident was an improvident exercise of discretion. (Cf. Landry v. State of New York, 1 A.D.2d 934, affd. 2 N.Y.2d 927. )