Kelly v. State

Appellate Division of the Supreme Court of New York

Kelly v. State

88 A.D.2d 613, 450 N.Y.S.2d 45, 1982 N.Y. App. Div. LEXIS 16808

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

DecidedMay 10, 1982

StatusPublished

Cited by4 cases

This text of 88 A.D.2d 613 (Kelly 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

Kelly v. State, 88 A.D.2d 613, 450 N.Y.S.2d 45, 1982 N.Y. App. Div. LEXIS 16808 (N.Y. Ct. App. 1982).

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Opinion

Appeal by the claimants from an order of the Court of Claims (Amann, J.), entered August 12,1981, which denied their motion pursuant to subdivision 6 of section 10 of the Court of Claims Act for leave to file a late notice of claim. Order reversed, with $50 costs and disbursements, and claimants’ motion to file a late notice of claim is granted. Under the circumstances of this case, the Court of Claims erred when it denied claimants’ motion on the ground that they failed to proffer a reasonable excuse for not filing a timely notice of claim. “[T]he tender of a reasonable excuse * * * is not a precondition to permission to file a late claim such as to constitute a sine qua non for the requested relief * * * Nothing in the statute makes the presence or absence of any one factor determinative.” (Bay Terrace Coop. Section IV v New York State Employees’ Retirement System, Policemen’s & Firemen’s Retirement System, 55 NY2d 979, [614]*614981; Matter of Butler v State of New York, 81 AD2d 834.) In our view, the motion should have been granted. Damiani, J. P., Lazer, Gibbons and Rubin, JJ., concur.

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Appeal by the claimants from an order of the Court of Claims (Amann, J.), entered August 12,1981, which denied their motion pursuant to subdivision 6 of section 10 of the Court of Claims Act for leave to file a late notice of claim. Order reversed, with $50 costs and disbursements, and claimants’ motion to file a late notice of claim is granted. Under the circumstances of this case, the Court of Claims erred when it denied claimants’ motion on the ground that they failed to proffer a reasonable excuse for not filing a timely notice of claim. “[T]he tender of a reasonable excuse * * * is not a precondition to permission to file a late claim such as to constitute a sine qua non for the requested relief * * * Nothing in the statute makes the presence or absence of any one factor determinative.” (Bay Terrace Coop. Section IV v New York State Employees’ Retirement System, Policemen’s & Firemen’s Retirement System, 55 NY2d 979, [614]*614981; Matter of Butler v State of New York, 81 AD2d 834.) In our view, the motion should have been granted. Damiani, J. P., Lazer, Gibbons and Rubin, JJ., concur.

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Bluebook (online)

88 A.D.2d 613, 450 N.Y.S.2d 45, 1982 N.Y. App. Div. LEXIS 16808, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kelly-v-state-nyappdiv-1982.

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