DeOlden v. State

• Decision Date: 31 January 1983
• Citation: 458 N.Y.S.2d 666,91 A.D.2d 1057
• Parties: David DeOLDEN, et al., Respondents, v. The STATE of New York, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 666

458 N.Y.S.2d 666

91 A.D.2d 1057

David DeOLDEN, et al., Respondents, v. The STATE of New York, Appellant.

Supreme Court, Appellate Division Second Department.

Jan. 31, 1983.

Robert Abrams, Atty. Gen., Albany (Jeremiah Jochnowitz and Michael S. Buskus, Asst. Attys. Gen., Albany, of counsel), for appellant.

Meiselman, Farber, Stella & Eberz, P.C., Poughkeepsie (Michael Kolb, Poughkeepsie, of counsel), for respondents.

Before LAZER, J.P., and WEINSTEIN, BRACKEN and RUBIN, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant State of New York from an order of the Court of Claims, dated June 15, 1982, which granted a motion by claimants for an order, pursuant to subdivision 6 of section 10 of the Court of Claims Act, permitting them to file a late claim against it.

Order affirmed, with $50 costs and disbursements.

Claimant David DeOlden suffered extremely severe personal injuries including amputation of his right leg below the knee. During the recovery period, in addition to undergoing extensive physical therapy, he suffered psychological trauma manifested by severe anxiety attacks requiring psychiatric treatment. Claimant's psychological injuries seriously affected his ability to function properly for some period after his discharge from the hospital.

Subdivision 6 of section 10 of the Court of Claims Act vests the Court of Claims with broad discretion in determining whether to grant leave to file a late claim. On the facts presented, the court did not abuse its discretion in granting the relief sought (see Bay Terrace Coop. Section IV v. New York State Employees Retirement System Policemen's & Firemen's Retirement System, 55 N.Y.2d 979, 449 N.Y.S.2d 185, 434 N.E.2d 254; Cedano v. City of New York, 51 N.Y.2d 896, 434 N.Y.S.2d 990, 415 N.E.2d 978; Matter of Beary v. City of Rye, 44 N.Y.2d 398, 406 N.Y.S.2d 9, 377 N.E.2d 453; Matter of Newson v. City of New York, 87 A.D.2d 630, 448 N.Y.S.2d 224; Hubbard v. County of Suffolk, 65 A.D.2d 567, 409 N.Y.S.2d 392). This case is factually distinguishable from our recent holding in Gatti v. State of New York, App.Div., 456 N.Y.S.2d 82, where the claimant's mistaken belief that the site of the accident was a town road, as opposed to a state highway, did not constitute a reasonable excuse for the delay in filing a claim against the State.

The court also properly exercised its discretion in permitting claimant Barbara DeOlden to file a late claim on her derivative cause of action (see Centelles v....