Saving v. State

199 A.D.2d 254, 604 N.Y.S.2d 970

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 6, 1993
• Status: Published

Opinion

In a claim to recover damages for personal injuries, the claimant appeals from an order of the Court of Claims (Corbett, J.), entered October 3, 1991, which denied his application pursuant to Court of Claims Act § 10 (6) for leave to serve a late notice of claim.

Ordered that the order is affirmed, without costs or disbursements.

Court of Claims Act § 10 (6) permits the late filing of a claim, in the court’s discretion, based on certain enumerated factors. One of the factors to be considered is whether the claim has the appearance of merit, as it would be futile to permit a defective claim to be filed even if the other factors in Court of Claims Act § 10 (6) supported the granting of the claimant’s motion (see, Prusack v State of New York, 117 AD2d 729; Rosenhack v State of New York, 112 Misc 2d 967).

We find that the court did not improvidently exercise its discretion in denying the claimant’s application. The claimant, a custodian employed by the City of New York, was injured when he fell down an allegedly defective staircase in the building housing the Family Court in Queens County. The State submitted evidence that the building was owned and maintained by the City, and the claimant failed to submit any evidence that the State was responsible for the maintenance of the common staircase (cf., Lieberman v Washington Sq. Hotel Corp., 40 AD2d 647; see also, Jerrett v State of New York, 166 AD2d 907). Accordingly, the claimant failed to establish that a valid cause of action exists. Mangano, P. J., Sullivan, O’Brien and Ritter, JJ., concur.