Duarte v. Suffolk County

230 A.D.2d 851, 646 N.Y.S.2d 563, 1996 N.Y. App. Div. LEXIS 8552

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: August 19, 1996
• Status: Published

Opinions

—In a proceeding for leave to serve a late notice of claim pursuant to General Municipal Law § 50-e (5), the petitioners appeal from an order of the Supreme Court, Suffolk County (Underwood, J.), dated February 16, 1995, which denied their application.

Ordered that the order is affirmed, with costs.

On December 20, 1993, the infant petitioner was allegedly sexually molested by another child while both were foster children in a home in Central Islip. The petitioner Evelyn Vargas, the mother of the victim, asserted a claim against the Commissioner of the State Department of Social Services; however, this claim was dismissed by order of the Court of Claims dated September 14, 1994, on the basis of the "improper service and the untimely filing of the notice of intention and claim with the Clerk”. The present petition for leave to file a late notice of claim against the County of Suffolk and the County Department of Social Services was then brought on or about December 7,1994. The Supreme Court denied this application. We affirm.

The petitioner Evelyn Vargas did not submit an affidavit in support of the petition for leave to serve a late notice of claim. Although her counsel alluded to the fact that Evelyn Vargas’ claim in the Court of Claims was filed "pro se” in March 1994, it is not clear exactly when she in fact consulted an attorney for the first time. This omission is all the more significant in light of the fact that the Court of Claims’ filings demonstrate Evelyn Vargas’ awareness of the general rule requiring filing of notices of claim in cases against government entities. She merely sued the wrong government entity, even though she should have known the correct entity, as illustrated by her written correspondence with the respondents and the response thereto dated January 28,1994. Considering that her incarceration did not prevent her from preparing the well-drafted papers filed in the Court of Claims, we cannot accept this circumstance as sufficient to excuse Ms. Vargas’ failure to serve or file a notice of claim in connection with the present action. In sum, we see no valid excuse for the delay and this factor, together with all the other circumstances presented, warrants the conclusion that the Supreme Court did not improvidently exercise its discretion (see, e.g., Matter of Rusiecki v Clarkstown Cent. School Dist., 227 AD2d 493; Matter of Matarrese v New York City Health & Hosps. Corp., 215 AD2d 7; Matter of Santana v City of New York, 211 AD2d 636).

Bracken, J. P., Thompson and Krausman, JJ., concur.