Cabral v. State

149 A.D.2d 453, 539 N.Y.S.2d 792, 1989 N.Y. App. Div. LEXIS 4644

Opinion

— In an application pursuant to Court of Claims Act § 10 (6) for leave to file a late notice of claim, the claimant appeals from an order of the Court of Claims (Lengyel, J.), dated October 21, 1987, which denied the application.

Ordered that the order is affirmed, with costs.

Approximately six months after slipping on ice accumulated on a walkway serving a State-owned building, the claimant sought leave to file a late notice of claim alleging, inter alia, that the State was negligent in failing to install gutters and leaders on the building in order to prevent runoff water from dripping onto the walkway. The only excuse offered in support of the contention that the delay was excusable was a conclusory assertion by the claimant’s counsel, unsupported by a physician’s affidavit, that the claimant’s alleged hospitalization at some undisclosed time delayed her from contacting an attorney, and that the claimant had no knowledge of the 90-day statutory filing requirement. The Court of Claims denied the claimant’s application, determining, inter alia, that the claimant failed to establish a reasonable excuse for the delay in support of her application. We agree.

Where, as here, the claimant failed to establish that her delay in seeking leave to file a late notice of claim was excusable, and where the claim itself is of questionable merit (cf., Prusack v State of New York, 117 AD2d 729, 730), the Court of Claims did not improvidently exercise its discretion in declining to grant the claimant’s application. Kunzeman, J. P., Kooper, Sullivan and Balletta, JJ., concur.