Opinion
February 18, 1971
Appeal from the Court of Claims.
Present — Del Vecchio, J.P., Marsh, Gabrielli, Moule and Henry, JJ.
Order unanimously reversed, without costs, and motion granted. Memorandum: On September 12, 1969 respondent was arrested at his residence by two State Troopers. Three days later he consulted a physician who found that he had sustained injuries to the head, chest and arm and evidenced a severe cerebral concussion. Respondent stated to the physician that he had been assaulted by one of the troopers at the time of his arrest at his home on September 12. Within three weeks he appeared before a Justice of the Peace in connection with two charges placed against him by the troopers. At that time he was accompanied by his attorney who had been engaged by his mother to defend him. The attorney appeared with him again on December 11, 1969, which was the last day for filing a claim for the alleged assault, and on that date prepared and mailed a handwritten notice of claim which was not verified by respondent. The claim was received after the 90-day period for filing and the State made this motion to dismiss for untimeliness. In opposition to the motion, respondent submitted affidavits by himself and his physician that his failure to file within the statutory period was the result of a confused state of mind caused by the assault and continuing up to December 11, 1969. The court, treating the opposing papers as a cross motion to file a late notice of claim, denied the State's motion and concluded that the delay in filing was legally excusable. Upon the record respondent has failed to show a reasonable excuse for failure to comply with subdivision 3 of section 10 CTC of the Court of Claims Act. ( Williams v. State of New York, 21 A.D.2d 844.) The contention that he was unable, by reason of his injuries and mental condition, to convey information to his attorney regarding the alleged assault from which a timely notice of claim could have been prepared is refuted by his physician's affidavit revealing that three days after the assault respondent told him when, where and by whom the assault took place. Furthermore, a court is authorized to permit a late filing only when the State or its appropriate department had actual knowledge of the essential facts constituting the claim within the statutory filing period. No such knowledge is alleged here. The knowledge of the troopers involved in the assault cannot be imputed to the State so as to satisfy this requirement. ( Bommarito v. State of New York, 35 A.D.2d 458.)