Savino v. State
| Decision Date | 06 December 1993 |
| Citation | 604 N.Y.S.2d 970,199 A.D.2d 254 |
| Parties | Michael SAVINO, Appellant, v. STATE of New York, Respondent. |
| Court | New York Supreme Court — Appellate Division |
Schwimmer & Sweeney, New York City (Peter P. Sweeney, of counsel), for appellant.
Robert Abrams, Atty. Gen., New York City (Peter G. Crary and Dennis Hurley, of counsel), for respondent.
Before MANGANO, P.J., and SULLIVAN, O'BRIEN and RITTER, JJ.
MEMORANDUM BY THE COURT.
In a claim to recover damages for personal injuries, the claimant appeals from an order of the Court of Claims (Corbett, J.), entered October 3, 1991, which denied his application pursuant to Court of Claims Act § 10(6) for leave to serve a late notice of claim.
ORDERED that the order is affirmed, without costs or disbursements.
Court of Claims Act § 10(6) permits the late filing of a claim, in the court's discretion, based on certain enumerated factors. One of the factors to be considered is whether the claim has the appearance of merit, as it would be futile to permit a defective claim to be filed even if the other factors in Court of Claims Act § 10(6) supported the granting of the claimant's motion (see, Prusack v. State of New York, 117 A.D.2d 729, 498 N.Y.S.2d 455; Rosenhack v. State of New York, 112 Misc.2d 967, 447 N.Y.S.2d 856).
We find that the court did not improvidently exercise its discretion in denying the claimant's application. The claimant, a custodian employed by the City of New York, was injured when he fell down an allegedly defective staircase in the building housing the Family Court in Queens County. The State submitted evidence that the building was owned and maintained by the City, and the claimant failed to submit any evidence that the State was responsible for the maintenance of the common staircase (cf., Lieberman v. Washington Square Hotel Corp., 40 A.D.2d 647, 336 N.Y.S.2d 518; see also, Jerrett v. State of New York, 166 A.D.2d 907, 560 N.Y.S.2d 568). Accordingly, the claimant failed to establish that a valid cause of action exists.
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