Wolf v. State

• Decision Date: 31 May 1988
• Citation: 529 N.Y.S.2d 22,140 A.D.2d 692
• Parties: Richard WOLF, Respondent, v. The STATE of New York, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 22

529 N.Y.S.2d 22

140 A.D.2d 692

Richard WOLF, Respondent, v. The STATE of New York, Appellant.

Supreme Court, Appellate Division,

Second Department.

May 31, 1988.

Donohue & Locker, White Plains (Harold Merran, of counsel), for appellant.

McCormack & Phillips, New City (Ronald G. McCormack, on the brief), for respondent.

Before MOLLEN, P.J., and MANGANO, EIBER and SULLIVAN, JJ.

MEMORANDUM BY THE COURT.

In a proceeding for leave to file a late notice of claim pursuant to Court of Claims Act § 10(6), the defendant appeals from a judgment of the Court of Claims (Lengyel, J.), dated August 18, 1986, which granted the application.

ORDERED that the judgment is affirmed, with costs.

The Court of Claims, after weighing the criteria delineated in Court of Claims Act § 10(6), granted the claimant permission to file a late notice of claim. Contrary to the State's contentions, we find that the court did not improvidently exercise its discretion by the ruling. The record amply supports the conclusion that the claimant sustained severe and extensive injuries as a result of a motor vehicle accident, which necessitated prolonged hospitalization and a period of convalescence thereafter. The claimant, therefore, presented a reasonable excuse for the delay in filing the notice of claim, namely, his physical incapacitation (see, Matter of Savelli v. City of New York, 104 A.D.2d 943, 480 N.Y.S.2d 561; Flynn v. City of Long Beach, 94 A.D.2d 713, 462 N.Y.S.2d 243; De Olden v. State of New York, 91 A.D.2d 1057, 458 N.Y.S.2d 666).

The documentation contained in the record, which includes a police accident report and a New York State Department of Motor Vehicles MV-104 form, provides further support for the conclusion that the State had acquired knowledge of the essential facts giving rise to the claim and that it had an adequate opportunity to conduct an investigation of the incident ( see, Matter of Gerzel v. City of New York, 117 A.D.2d 549, 499 N.Y.S.2d 60; Hayden v. Incorporated Vil. of Hempstead, 103 A.D.2d 765, 477 N.Y.S.2d 392; Trakis v. City of New York, 92 A.D.2d 569, 459 N.Y.S.2d 322). This determination is buttressed by the fact that an employee of the State was not only present at the accident scene but was involved in the collision itself ( see, Whitehead v. Centerville Fire Dist., 90 A.D.2d 655, 456 N.Y.S.2d 450; Matter of Ziecker v. Town of Orchard Park, 70 A.D.2d 422, 421 N.Y.S.2d 447, affd 51 N.Y.2d 957, 435 N.Y.S.2d 720, 416 N.E.2d 1055).

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