
    Max Schnurr, Jr., Claimant, v. State of New York, Defendant.
    (Motion No. 1606.)
    Court of Claims,
    June 27, 1949.
    
      John M. Schneider for claimant.
    
      Nathaniel L. Goldstein, Attorney-General (Arthur I. Seld of counsel), for defendant.
   Ryan, J.

This is an application to file a claim pursuant to subdivision 5 of section 10 of Court of Claims Act (L. 1939, ch. 860). On October 31, 1948, the claimant was a passenger in an automobile driven by Betty Jean Koonz which collided with an automobile driven by Leslie Dunn. Dunn filed a notice of intentian on January 27, 1949, and a claim on March 26, 1949. The defendant has had opportunity to investigate the accident and its cause and will not he prejudiced by granting Schnurr permission to file a claim. The excuse which this claimant presents is that he was physically and mentally incapacitated beyond the ninety-day period to the extent that he could not seek or acquire information as to his rights nor act to protect them. In support of this contention he submits his own affidavit and that of his attending physician. It appears that Schnurr sustained a skull fracture and his physician avers that claimant was not at any time during the first three and one-half months following the date on which he sustained such injuries physically or mentally capable of appreciating or understanding his rights or able to discuss them properly or intelligently with an attorney.

That there is here presented an excuse sufficient for the exercise of the court’s discretion is not entirely free from doubt. However, the application is granted upon the authority of Toof v. State of New York (Motion No. 544 [1940], revd. 260 App. Div. 830, affd. 286 N. Y. 620).

Enter order accordingly.  