Gatti v. State

In a proceeding for permission to file a late claim against the State of New York, the appeal is from an order of the Court of Claims (Blinder, J.), dated June 29, 1981, which granted petitioner’s application. Order reversed, on the law, without costs or disbursements, and application denied. Subdivision 6 of section 10 of the Court of Claims Act now gives the Court of Claims broader discretion in determining applications for permission to file a late claim (see Rios v State of New York, 67 AD2d 744). Nevertheless, under the circumstances at bar, the court clearly abused its discretion in granting the petitioner’s application. Although the petitioner made a sufficient showing of a meritorious claim, the other statutory criteria relevant to a determination of whether to permit the filing of a late claim weigh heavily against her. Under the facts at bar, the petitioner’s mistaken belief that the road upon which the accident occurred was a town road rather than a State highway did not constitute a reasonable excuse for the delay in filing a claim against the State (see, e.g., Erca v State of New York, 51 AD2d 611, affd 42 NY2d 854). Moreover, it appears that the State neither had knowledge of the essential facts constituting the claim nor had an opportunity to investigate the underlying circumstances. And, although the papers do not specifically address the question of substantial prejudice, it is clear that the 231/2-month delay in making the claim prejudiced the State in view of the transitory nature of the ice condition which is alleged to have been the proximate cause of the accident. Finally, the petitioner continues to have the remedy of an action against the operators and owners of the other vehicles involved in the accident. Accordingly, the petitioner’s application should have been denied. Mollen, P. J., Damiani, Titone and Weinstein, JJ., concur.