Tucholski v. State

• Decision Date: 05 November 2014
• Docket Number: 2013-10623
• Citation: 2014 N.Y. Slip Op. 07494,122 A.D.3d 612,996 N.Y.S.2d 97
• Court: New York Supreme Court — Appellate Division
• Parties: Ronald TUCHOLSKI, et al., appellants, v. STATE of New York, respondent.

122 A.D.3d 612
996 N.Y.S.2d 97
2014 N.Y. Slip Op. 07494

Ronald TUCHOLSKI, et al., appellants
v.
STATE of New York, respondent.

2013-10623

Supreme Court, Appellate Division, Second Department, New York.

Nov. 5, 2014.

996 N.Y.S.2d 98

Kelner & Kelner, New York, N.Y. (Joshua D. Kelner of counsel), for appellants.

Eric T. Schneiderman, Attorney General, New York, N.Y. (Won S. Shin and Judith N. Vale of counsel), for respondent.

RUTH C. BALKIN, J.P., CHERYL E. CHAMBERS, ROBERT J. MILLER, and SYLVIA O. HINDS–RADIX, JJ.

Opinion

122 A.D.3d 612

In a claim to recover damages for personal injuries, etc., the claimants appeal, as limited by their brief, from so much of an order of the Court of Claims (Ruderman, J.), dated August 19, 2013, as denied that branch of their motion which was for leave to file a late claim pursuant to Court of Claims Act § 10(6) on behalf of the claimant Lynne Tucholski.

ORDERED that the order is reversed insofar as appealed from, on the facts and in the exercise of discretion, with costs, and that branch of the claimants' motion which was for leave to file a late claim pursuant to Court of Claims Act § 10(6) on behalf of the claimant Lynne Tucholski is granted.

Court of Claims Act § 10(6) permits a court, in its discretion, upon consideration of the enumerated factors, to allow a claimant to file a late claim (see Morris v. Doe, 104 A.D.3d 921, 921, 960 N.Y.S.2d 908 ; Qing Liu v. City Univ. of N.Y., 262 A.D.2d 473, 474, 691 N.Y.S.2d 329 ). “No one factor is deemed controlling, nor is the presence or absence of any one factor determinative” (Qing Liu v. City Univ. of N.Y., 262 A.D.2d at 474, 691 N.Y.S.2d 329 ; see Morris v. Doe, 104 A.D.3d at 921, 960 N.Y.S.2d 908 ).

Here, the Court of Claims improvidently exercised its discretion in denying that branch of the claimants' motion which was for leave to file a late claim on behalf of the claimant Lynne Tucholski. It is...