Bay Terrace Cooperative Section IV, Inc. v. New York State Employees' Retirement System Policemen's and Firemen's Retirement System

• Decision Date: 20 September 1982
• Citation: 454 N.Y.S.2d 327,89 A.D.2d 992
• Parties: BAY TERRACE COOPERATIVE SECTION IV, INC., Respondent, v. NEW YORK STATE EMPLOYEES' RETIREMENT SYSTEM POLICEMEN'S AND FIREMEN'S RETIREMENT SYSTEM, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 327

454 N.Y.S.2d 327

89 A.D.2d 992

BAY TERRACE COOPERATIVE SECTION IV, INC., Respondent, v. NEW YORK STATE EMPLOYEES' RETIREMENT SYSTEM POLICEMEN'S AND FIREMEN'S RETIREMENT SYSTEM, Appellant.

Supreme Court, Appellate Division,

Second Department.

Sept. 20, 1982.

Before LAZER, J.P., and MANGANO, NIEHOFF and RUBIN, JJ.

MEMORANDUM BY THE COURT.

In a claim accruing in Queens County to recover damages for breach of contract, defendant appeals from an order of the Court of Claims, dated September 20, 1979, which, upon the claimant's motion, inter alia, to file a late claim, dismissed defendant's first affirmative defense (that the claim was untimely filed) and granted claimant leave to file a late claim pursuant to subdivision 6 of section 10 of the Court of Claims Act.

By order dated February 9, 1981, this court reversed that order, on the law, denied the motion and dismissed the claim for failure to timely file a claim, on the ground that "having failed to show any excuse for its delay in filing * * * has not satisfied the criteria set forth in subdivision 6 of section 10 of the Court of Claims Act" (80 A.D.2d 571, 572, 435 N.Y.S.2d 794).

On February 18, 1982, the Court of Appeals reversed the order of this court and remitted the case to us for the exercise of our discretion, stating that a determination could not be made as a matter of law solely on the presence or absence of any one factor, and that the absence of a reasonable excuse for the failure to file a late claim could not be considered a sine qua non for the granting of the relief (55 N.Y.2d 979, 449 N.Y.S.2d 185, 434 N.E.2d 254).

Order affirmed, without costs or disbursements.

Here, where the majority of the enumerated factors are in favor of the claimant, the Court of Claims cannot be said to have abused its discretion by granting the application to file a late claim (see, e.g., Eagle Ins. Co. v. State of New York, 71 A.D.2d 726, 419 N.Y.S.2d 226; Rios v. State of New York, 67 A.D.2d 744, 412 N.Y.S.2d 227; Matter of Butler v. State of New York, 81 A.D.2d 834, 438 N.Y.S.2d 834).