Rodrigues v. State

Appellate Division of the Supreme Court of New York

Rodrigues v. State

143 A.D.2d 993, 533 N.Y.S.2d 765, 1988 N.Y. App. Div. LEXIS 10381

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

DecidedOctober 31, 1988

StatusPublished

This text of 143 A.D.2d 993 (Rodrigues 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.

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Rodrigues v. State, 143 A.D.2d 993, 533 N.Y.S.2d 765, 1988 N.Y. App. Div. LEXIS 10381 (N.Y. Ct. App. 1988).

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Opinion

Appeal by the claimants from an order of the Court of Claims (Silverman, J.), dated September 30, 1987, which denied their motion pursuant to Court of Claims Act § 10 (6) for leave to file a late notice of claim.

Ordered that the order is affirmed, with costs.

In support of their application to file a late notice of claim, the claimants submitted only the affidavits of their attorney and of one of their attorney’s employees. These submissions averred that the reason for the claimants’ delay of over nine months in seeking to assert a claim was that their attorney "has only just been retained by the claimants”. The attorney’s affidavit further alleged that "the claimants do not speak English”. These assertions do not constitute reasonable excuses for the delay. Indeed, "[the] asserted inability to secure an attorney is no basis for delay in filing” (Simpson v State of New York, 96 AD2d 646), and "[t]he inability to speak or understand English is not a sufficient excuse for a failure to serve a timely notice of claim” (Figueroa v City of New York, 92 AD2d 908, 909; see, Torres v City of New York, 50 AD2d 826). Hence, the court properly determined that the claimants failed to demonstrate a reasonable and acceptable excuse for their delay.

Moreover, our review of the record leads us to agree with the court’s findings that the claimants failed to establish that their claim was meritorious, that adequate and timely notice of the facts surrounding the alleged injury was effectively provided to the respondent, and that no alternative remedy was available (see, Malek v State of New York, 92 AD2d 659). Accordingly, we discern no abuse of discretion in the court’s denial of the motion. Mangano, J. P., Thompson, Brown and Sullivan, JJ., concur.

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Appeal by the claimants from an order of the Court of Claims (Silverman, J.), dated September 30, 1987, which denied their motion pursuant to Court of Claims Act § 10 (6) for leave to file a late notice of claim.

Ordered that the order is affirmed, with costs.

In support of their application to file a late notice of claim, the claimants submitted only the affidavits of their attorney and of one of their attorney’s employees. These submissions averred that the reason for the claimants’ delay of over nine months in seeking to assert a claim was that their attorney "has only just been retained by the claimants”. The attorney’s affidavit further alleged that "the claimants do not speak English”. These assertions do not constitute reasonable excuses for the delay. Indeed, "[the] asserted inability to secure an attorney is no basis for delay in filing” (Simpson v State of New York, 96 AD2d 646), and "[t]he inability to speak or understand English is not a sufficient excuse for a failure to serve a timely notice of claim” (Figueroa v City of New York, 92 AD2d 908, 909; see, Torres v City of New York, 50 AD2d 826). Hence, the court properly determined that the claimants failed to demonstrate a reasonable and acceptable excuse for their delay.

Moreover, our review of the record leads us to agree with the court’s findings that the claimants failed to establish that their claim was meritorious, that adequate and timely notice of the facts surrounding the alleged injury was effectively provided to the respondent, and that no alternative remedy was available (see, Malek v State of New York, 92 AD2d 659). Accordingly, we discern no abuse of discretion in the court’s denial of the motion. Mangano, J. P., Thompson, Brown and Sullivan, JJ., concur.

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143 A.D.2d 993, 533 N.Y.S.2d 765, 1988 N.Y. App. Div. LEXIS 10381, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rodrigues-v-state-nyappdiv-1988.

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