Gallagher v. State

Appellate Division of the Supreme Court of New York

Gallagher v. State

236 A.D.2d 400, 654 N.Y.S.2d 579, 1997 N.Y. App. Div. LEXIS 1036

CourtAppellate Division of the Supreme Court of the State of New York

DecidedFebruary 3, 1997

DocketClaim No. 93295

StatusPublished

Cited by3 cases

This text of 236 A.D.2d 400 (Gallagher v. State) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Gallagher v. State, 236 A.D.2d 400, 654 N.Y.S.2d 579, 1997 N.Y. App. Div. LEXIS 1036 (N.Y. Ct. App. 1997).

Pincite

Opinion

—In a proceeding pursuant to Court of Claims Act § 10 (6) for leave to file a late claim against the State, the defendant appeals from an order of the Court of Claims (Ruderman, J.), dated December 18, 1995, which granted the application.

Ordered that the order is reversed, as a matter of discretion, with costs, and the claimant’s application is denied.

The Court of Claims improvidently exercised its discretion in granting the claimant’s application for leave to file a late claim. Court of Claims Act § 10 (6) permits the late filing of a claim, in the court’s discretion, upon consideration of certain enumerated factors. No one factor is determinative (see, Bay Terrace Coop. Section IV v New York State Employees’ Retirement Sys. Policemen’s & Firemen’s Retirement Sys., 55 NY2d 979; Holly v State of New York, 191 AD2d 678). Here, the court considered all of the factors set forth in the Court of Claims Act and determined that two of these factors weighed in the claimant’s favor. Specifically, the court found that there appeared to be merit to the claim and that the State was not substantially prejudiced by the delay. We disagree. The claimant did not demonstrate the appearance of merit to his claim by merely submitting a photograph of what he alleged to be the site of the accident, particularly when the photograph was taken approximately eight months after the accident. Moreover, under these circumstances, the fact that the State did not receive actual notice of the claim until approximately nine months after the accident caused it substantial prejudice. Rosenblatt, J. P., Joy, Florio and McGinity, JJ., concur.

Free access — add to your briefcase to read the full text and ask questions with AI

—In a proceeding pursuant to Court of Claims Act § 10 (6) for leave to file a late claim against the State, the defendant appeals from an order of the Court of Claims (Ruderman, J.), dated December 18, 1995, which granted the application.

Ordered that the order is reversed, as a matter of discretion, with costs, and the claimant’s application is denied.

The Court of Claims improvidently exercised its discretion in granting the claimant’s application for leave to file a late claim. Court of Claims Act § 10 (6) permits the late filing of a claim, in the court’s discretion, upon consideration of certain enumerated factors. No one factor is determinative (see, Bay Terrace Coop. Section IV v New York State Employees’ Retirement Sys. Policemen’s & Firemen’s Retirement Sys., 55 NY2d 979; Holly v State of New York, 191 AD2d 678). Here, the court considered all of the factors set forth in the Court of Claims Act and determined that two of these factors weighed in the claimant’s favor. Specifically, the court found that there appeared to be merit to the claim and that the State was not substantially prejudiced by the delay. We disagree. The claimant did not demonstrate the appearance of merit to his claim by merely submitting a photograph of what he alleged to be the site of the accident, particularly when the photograph was taken approximately eight months after the accident. Moreover, under these circumstances, the fact that the State did not receive actual notice of the claim until approximately nine months after the accident caused it substantial prejudice. Rosenblatt, J. P., Joy, Florio and McGinity, JJ., concur.

Cite This Page — Counsel Stack

Bluebook (online)

236 A.D.2d 400, 654 N.Y.S.2d 579, 1997 N.Y. App. Div. LEXIS 1036, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gallagher-v-state-nyappdiv-1997.

Opinion

Related

Cite This Page — Counsel Stack