Rios v. State
| Decision Date | 04 January 1979 |
| Citation | 412 N.Y.S.2d 227,67 A.D.2d 744 |
| Parties | Pauline RIOS et al., Respondents, v. STATE of New York, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Louis J. Lefkowitz, Atty. Gen. (Peter J. Dooley, Jr., Asst. Atty. Gen., of counsel), for appellant.
Leon Segan, New York City (Geraldine J. Gould, New York City, of counsel), for respondents.
Before SWEENEY, J. P., and KANE, STALEY, MAIN and MIKOLL, JJ.
Appeal from an order of the Court of Claims, entered on July 13, 1977, which granted claimants' application for leave to serve a late notice of claim.
Claimants are husband and wife and were occupants of a car which was involved in a one-car accident on the Palisades Interstate Parkway on December 2, 1976. These claims against the State are based upon allegations of negligence of the State in the removal of snow and ice from the parkway. The claims were not filed within the 90-day period and thereafter a motion was made for leave to file late claims. The Court of Claims granted the motion as to both claimants, and the State has appealed.
Claims against the State to recover damages for personal injuries caused by negligence must be filed within 90 days after the accrual of such claim (Court of Claims Act, § 10, subd. 3). Section 10 of the Court of Claims Act also contains a provision for filing a late notice of claim (Court of Claims Act, § 10, subd. 6) which was amended effective September 1, 1976. Previously, even though permission to file late was addressed to the court's discretion, three mandatory requirements had to be met before such discretion could be exercised (De Marco v. State of New York, 43 A.D.2d 786, 350 N.Y.S.2d 230, affd. 37 N.Y.2d 735, 374 N.Y.S.2d 619, 237 N.E.2d 131). The amendment requires that the court "consider" certain factors, among others. This change of language evinced an intent to give the Court of Claims wider discretion and, in the proper case, to permit a late filing where less than all of said factors favor same (Sessa v. State of New York, 88 Misc.2d 454, 388 N.Y.S.2d 513, affd. 63 A.D.2d 334, 408 N.Y.S.2d 547). In this manner, litigants with meritorious claims would be afforded their day in court (Matter of Flannery v. State of New York, 91 Misc.2d 797, 399 N.Y.S.2d 88).
In the case before us, there appear to be enough factors in favor of allowing the wife to file a late claim so that it cannot be said that the Court of Claims abused its discretion in so ruling. It...
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