Donaldson v. State

• Citation: 563 N.Y.S.2d 366,167 A.D.2d 805
• Parties: In the Matter of Gordon DONALDSON et al., Respondents, v. STATE of New York, Appellant.
• Decision Date: 29 November 1990
• Court: New York Supreme Court — Appellate Division

Page 366

563 N.Y.S.2d 366

167 A.D.2d 805

In the Matter of Gordon DONALDSON et al., Respondents, v. STATE of New York, Appellant.

Supreme Court, Appellate Division Third Department.

Nov. 29, 1990.

Robert Abrams, Atty. Gen. (Patricia M. Curtin of Levene, Gouldin & Thompson, Binghamton, of counsel), Albany, for appellant.

Learned, Reilly & Learned (Scott J. Learned, of counsel), Elmira, for respondents.

Before MAHONEY, P.J., and CASEY, WEISS, LEVINE and MERCURE, JJ.

LEVINE, Justice.

Appeal from an order of the Court of Claims (Hanifin, J.), entered December 27, 1989, which granted claimants' application pursuant to Court of Claims Act § 10(6) for permission to file a late claim.

On or about October 2, 1987, claimant Gordon Donaldson, a mason, allegedly sustained injuries during the course of his employment when lumber and plastic sheeting blew off the roof of a building adjacent to where he was working at Southport Correctional Facility in Chemung County. Donaldson was employed by Dick International, a construction company performing work at the facility pursuant to a contract with the State. On March 13, 1989, more than 17 months after the accident, claimants made application to the Court of Claims for permission to file a late claim against the State. In their proposed claim, claimants sought damages for personal injuries and derivative losses resulting from the State's alleged negligence in failing to provide Donaldson with a safe place to work in violation of the Labor Law. The Court of Claims granted claimants' application and this appeal by the State followed.

There should be an affirmance. A determination by the Court of Claims as to whether to grant permission to file a late notice of claim is one which lies within the court's broad discretion and should not be disturbed absent a clear abuse of that discretion (see, Matter of Sevilla v. State of New York, 145 A.D.2d 865, 865-866, 536 N.Y.S.2d 190, lv. denied 74 N.Y.2d 601, 541 N.Y.S.2d 984, 539 N.E.2d 1112; Simpson v. State of New York, 96 A.D.2d 646, 466 N.Y.S.2d 509; Donovan v. New York State Teachers' Retirement Sys., 87 A.D.2d 664, 665, 448 N.Y.S.2d 841). In arriving at such a determination, the Court of Claims is required to consider, among other factors, those enumerated in Court of Claims Act § 10(6), no one factor being controlling (see, Bay Terrace Coop. Section IV v. New York State Employees' Retirement Sys. Policemen's & Firemen's Retirement Sys., 55 N.Y.2d 979, 981, 449 N.Y.S.2d 185, 434 N.E.2d 254; Simpson v. State of New York, supra). After reviewing the relevant factors in this case, the Court of Claims concluded that, on balance, they weighed in claimants' favor. On this appeal the State contends that the court abused its discretion by failing to properly weigh the factors, particularly with regard to prejudice. We disagree.

While we recognize that prejudice is more likely to result where a claim, such as the one here, involves conditions which are transitory in nature (see, Matter of Garguiolo v. New York State Thruway Auth., 145 A.D.2d 915, 916, 535...