Opinion
May 1, 1961
In a proceeding pursuant to section 197 High. of the Highway Law, for the appointment of commissioners to determine the compensation to which petitioners are entitled by reason of a change of grade of a town road abutting their premises, in which the answer, inter alia, pleads as a third separate defense that petitioners "failed to present a verified claim within 60 days after the change of grade was completed", as required by said statute, the Town of Hempstead appeals, as limited by its brief, from so much of an order of the Supreme Court, Nassau County, dated June 29, 1960, as grants petitioners' application and as strikes out said separate third defense for insufficiency. It appears that the sidewalks and the grading on the road in question were completed on or before October 23, 1959; that on November 9, 1959, at the petitioners' request, the town made a ramp from the sidewalk to petitioners' driveway; that on November 13, 1959, the work was completed under the contract which had been awarded for the portion of the improvement that included the road abutting petitioners' property; and that on January 8, 1960, the petitioners served a notice of claim upon the town. Order, insofar as appealed from, affirmed, with $10 costs and disbursements. No opinion. Nolan, P.J., Kleinfeld, Christ, Pette and Brennan, JJ., concur.