Molinaro v. State , 23 Misc. 2d 938 ( 1960 )

Fred A. Young, J.

This is a motion for an order dismissing the ¡above-entitled -claim upon the ground that the court does mot have jurisdiction over the subject matter of this .action since the claim -was not filed within 9.0 days -after the ¿accrual of said action as .provided under subdivision 3 of section 10 of the Court of Claims Act.

There is mo question that a claimant faced with acts -of continuing trespassing must file within 90 days of the accrual. (La Rose v. State of New York, 199 Misc. 317.)

Also it is well settled that the 90-day period established by subdivision 3 of section 10 of the Court of Claims Act .does mot begin to run until ¡the injured property owner earn ascertain the full extent of his damages. (Dufel v. State of New York, ,198 App. Div. .97 [1921]; Allen v. State of New York, 208 Misc. 385 [1955], affd. 2 A D 2d 644 [1955]; Paduano v. State of New York, 203 App. Div. 503 [1922]; Kosciuszko v. State of New York, 15 Misc 2d 1009 [1959].)

Whether or not the claimant has had an opportunity to fully ascertain the extent of damage caused by the continuing trespass needs a .little more developing than was presented during the oral argument before the court. It would seem to the court that ¡this can be .established .best by testimony to ¡be produced during ¡the actual trial.

Furthermore, for the purposes of this motion the allegations ¡of the .claimant must be deemed established and every fair inference must be construed in favor of the claimant. (Rizzo v. State of New York, 202 Misc. 439 [1951].) There was strong indication during oral argument that the claimant was .¡not able to determine the full extent of the damages sustained as a result of defendant’s wrongful acts.

While the court favors- termination of litigation, nevertheless, we feel that an individual should have a full day in court if possible. We reach the conclusion that more evidence is necessary in order that the court can fully understand all the circumstances ; that no serious- damage will be done by denial of this motion; and that the motion should be made, perhaps, during trial.

The motion made by the State is therefore denied.