Nicometti v. State
| Decision Date | 15 November 1988 |
| Citation | 144 A.D.2d 1036,534 N.Y.S.2d 48 |
| Parties | Nazareno NICOMETTI and Patricia Nicometti, Respondents, v. STATE of New York, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Before DENMAN, J.P., and BOOMER, BALIO, LAWTON and DAVIS, JJ.
The State appeals from an order of the Court of Claims which granted claimants' motion pursuant to Court of Claims Act § 10(6) for permission to serve a late notice of claim alleging that the State violated Labor Law §§ 200 and 241. Claimant Nazareno Nicometti was injured when the hood flew off a truck he was driving at or near a State-owned construction site, causing him to lose control of the truck and roll over into a ditch. He claims that a jack left unsecured in the truck by a co-worker struck him in the face, fracturing his eye socket.
The court abused its discretion in granting the motion for leave to serve late notice of claim. The 33-month delay in serving the claim is undue and completely unexcused. There is no showing that claimant's injuries resulted in a legal disability or that they prevented him from consulting counsel. In any event, the period of physical disability apparently ended 11 months before he sought to serve the late notice. The prejudice to the State as a result of the delay is clear. The State did not investigate the accident and has lost the opportunity to inspect the truck because its whereabouts is unknown. The claim is of dubious merit (see, Siragusa v. State of New York, 117 A.D.2d 986, 987, 499 N.Y.S.2d 533, lv. denied 68 N.Y.2d 602, 505 N.Y.S.2d 1026, 496 N.E.2d 239), and claimant has the alternative remedy of workers' compensation benefits.
Order unanimously reversed on the law and in the exercise of discretion without costs and motion denied.
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