Soble v. State
| Decision Date | 07 January 1993 |
| Citation | 592 N.Y.S.2d 285,189 A.D.2d 970 |
| Parties | In the Matter of Edwin M. SOBLE III et al., Appellants, v. STATE of New York, Respondent. |
| Court | New York Supreme Court — Appellate Division |
Michaels & Bell, P.C. (Paul C. Campbell, of counsel), Auburn, for appellants. Robert Abrams, Atty. Gen. (Michael S. Buskus, of counsel), Albany, for respondent.
Appeal from an order of the Court of Claims (Bell, J.), entered March 4, 1992, which denied claimants' application pursuant to Court of Claims Act § 10(6) for permission to file a late notice of claim. On July 22, 1990 claimant Edwin M. Soble III attempted to descend a waterfall known as Sliding Rock, located in the Five Ponds Wilderness area of the Adirondack Forest Preserve. Soble, who attempted his descent by sitting on a boat cushion, struck a rock and fractured his spine. On or about September 26, 1991, Soble and his spouse moved for permission to file a late notice of claim in accordance with Court of Claims Act § 10(6). The Court of Claims denied the motion finding, inter alia, that the proposed claim lacked merit. This appeal by claimants followed. We affirm. It is well settled that the decision to grant or deny a motion for permission to file a late notice of claim lies within the broad discretion of the Court of Claims and should not be disturbed absent a clear abuse of that discretion (see, Matter of Gavigan v. State of New York, 176 A.D.2d 1117, 1118, 575 N.Y.S.2d 217; Matter of Donaldson v. State of New York, 167 A.D.2d 805, 806, 563 N.Y.S.2d 366; Calco v. State of New York, 165 A.D.2d 117, 119, 565 N.Y.S.2d 880, lv. denied 78 N.Y.2d 852, 573 N.Y.S.2d 466, 577 N.E.2d 1058). Although the court is required to consider the six factors set forth in Court of Claims Act § 10(6), no single factor is deemed controlling (Matter of Gavigan v. State of New York, supra, 176 A.D.2d at 1118, 575 N.Y.S.2d 217; see, Bay Terrace Coop. Section IV v. New York State Empls. 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; Matter of Carvalho v. State of New York, 176 A.D.2d 317, 574 N.Y.S.2d 759). We acknowledge that where the majority of the statutory factors may be resolved in a claimant's favor, permission to file a late notice of claim is usually granted (see generally, Matter of Carvalho v. State of New York, supra ). Here, however, claimants concede that they have failed to offer an acceptable excuse for...
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