Gatti v. State
| Decision Date | 29 November 1982 |
| Citation | 456 N.Y.S.2d 82,90 A.D.2d 840 |
| Parties | Elizabeth J. GATTI, Respondent, v. The STATE of New York, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Robert Abrams, Atty. Gen., Albany , for appellant.
Keegan, Keegan & Hecker, P.C., White Plains (Bruce Roth, White Plains, of counsel), for respondent.
Before MOLLEN, P.J., and DAMIANI, TITONE and WEINSTEIN, JJ.
MEMORANDUM BY THE COURT.
In a proceeding for permission to file a late claim against the State of New York, the appeal is from an order of the Court of Claims, dated June 29, 1981, which granted petitioner's application.
Order reversed, on the law, without costs or disbursements, and application denied.
Subdivision 6 of section 10 of the Court of Claims Act now gives the Court of Claims broader discretion in determining applications for permission to file a late claim (see Rios v. State of New York, 67 A.D.2d 744, 412 N.Y.S.2d 227). Nevertheless, under the circumstances at bar, the court clearly abused its discretion in granting the petitioner's application.
Although the petitioner made a sufficient showing of a meritorious claim, the other statutory criteria relevant to a determination of whether to permit the filing of a late claim weigh heavily against her.
Under the facts at bar, the petitioner's mistaken belief that the road upon which the accident occurred was a town road rather than a State highway did not constitute a reasonable excuse for the delay in filing a claim against the State (see, e.g., Erca v. State, 51 A.D.2d 611, 378 N.Y.S.2d 328, affd. 42 N.Y.2d 854, 397 N.Y.S.2d 631, 366 N.E.2d 291). Moreover, it appears that the State neither had knowledge of the essential facts constituting the claim nor had an opportunity to investigate the underlying circumstances. And, although the papers do not specifically address the question of substantial prejudice, it is clear that the 23 1/2 month delay in making the claim prejudiced the State in view of the transitory nature of the ice condition which is alleged to have been the proximate cause of the accident. Finally, the petitioner continues to have the remedy of an action against the operators and owners of the other vehicles involved in the accident. Accordingly, the petitioner's application should have been denied.
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...evidence was not shown to be transitory (cf. Malek v. State, App.Div., 460 N.Y.S.2d 165 [3rd Dept, 1983]; Gatti v. State, 90 A.D.2d 840, 456 N.Y.S.2d 82 [2d Dept, 1982] ) and defendant gave no indication that the State employees or records involved were unavailable. Its unsupported concluso......
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... ... excusable"]; see also Erca v State of New York, ... 51 A.D.2d 611 [3d Dept 1976], affd 42 N.Y.2d 854 ... [1977] [An error in filing a claim against the wrong party ... was not a reasonable excuse for the delay]; Gatti v State ... of New York, 90 A.D.2d 840 [2d Dept 1982] [A mistaken ... belief that the town and not the State owned the road in ... issue was not a reasonable excuse for the delay]) ... Accordingly, the Court finds that this factor does not weigh ... in favor of ... ...
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...from what it was on November 7, 1982, the day of the accident. The cases cited by the State are inapposite. In Gatti v. State of New York, 90 A.D.2d 840, 456 N.Y.S.2d 82, where the application to file a late claim against the State was denied, claimant alleged that she mistakenly believed t......
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