Cole v. State

• Decision Date: 29 September 1978
• Citation: 64 A.D.2d 1023,409 N.Y.S.2d 306
• Parties: David M. COLE, Appellant, v. The STATE of New York, Reservoir State Park and Power Authority of the State of New York, Respondents.
• Court: New York Supreme Court — Appellate Division

Page 306

409 N.Y.S.2d 306

64 A.D.2d 1023

David M. COLE, Appellant, v. The STATE of New York, Reservoir State Park and Power

Authority of the State of New York, Respondents.

Supreme Court, Appellate Division, Fourth Department.

Sept. 29, 1978.

R. Thomas Burgasser, P. C., North Tonawanda, for appellant.

Louis J. Lefkowitz, Atty. Gen., by Joseph F. Gibbons, Albany, for respondents State and Reservoir State Park.

John J. Heffernan, Buffalo, for respondent Power Authority.

Before MOULE, J. P., and CARDAMONE, DILLON, HANCOCK and SCHNEPP, JJ.

MEMORANDUM:

Claimant appeals from an Order of the Court of Claims which denied his motion for permission to file a late claim pursuant to Section 10 of the Court of Claims Act. Claimant suffered fractures to both his legs on December 6, 1974, when a snowmobile he was operating plunged off an embankment on premises that he claims are maintained by the State of New York or by the Power Authority, which owns property adjacent to the state lands. By motion initially returnable on November 3, 1976 claimant sought permission to file a late claim. In its decision dated February 10, 1977 the Court of Claims found that his delay in filing the claim was not excusable, noting that by claimant's own sworn statement his immobility resulting from his injuries terminated at the end of May 1975 and that the long delay between the termination of his immobility, which was beyond the statutory 90-day period, and the return date of this motion was unexplained. While recognizing that the question was moot in view of its decision, the court also pointed out that it did not have jurisdiction over the Power Authority.

Pursuant to subdivision 6 of Section 10 of the Court of Claims Act, the court in its discretion may grant permission to file a late claim after it considers, among other factors, whether the delay in filing the claim was excusable, whether the state had notice of essential facts constituting the claim, and whether the failure to file a timely claim resulted in substantial prejudice to the state. In this appeal the state argues that claimant inexcusably delayed making an application for leave to file a late claim after the expiration of the statutory 90-day period, and that the inference of notice to the state, based on the alleged presence of state employees at the scene of the incident and the State Police involvement the following day, is not justified. We disagree.

The court below erred in focusing primarily on the period of time subsequent to the 90-day period. Subdivision 6 of Section 10 of the Court of Claims Act (effective September 1, 1976), which applies retroactively (Kelly v. State of New York, 57 A.D.2d 320, 327, 395 N.Y.S.2d 311), provides that a claimant who fails to file a claim or notice of intention within the 90-day period as required by subdivision 3, may in the discretion of the court be permitted to file a late notice of claim "before an action asserting a like claim * * * would be barred under the provision of article two of the civil practice law and rules". "(T)he 90-day period is the crucial time and if there is adequate excuse for letting that time go by, the effective disability (of the claimant) need not continue through all the succeeding period before the motion to file the claim is made" (Bloom v. State of New York, 5 A.D.2d 930, 931, 172 N.Y.S.2d 70, 71). This is not to say, however, that the court may not consider whether the long delay resulted in substantial prejudice to the state. Here claimant alleges that he was hospitalized for approximately thirteen days, during which he was fully immobilized and nonambulatory, and under heavy medication. On December 20, 1974 he left the hospital, and thereafter began a gradual program...