Betron v. State

Order unanimously reversed on the law without costs and motion granted. Memorandum: The Court of Claims abused its discretion in denying claimant’s application for leave to file a late claim on the ground that the claim does not appear to have merit under the circumstances presented herein. The record demonstrates that on November 6, 1987, claimant sustained personal injuries when the pickup truck in which she was a passenger slid out of control, crossed the center line of the highway and became involved in a three vehicle accident on State Route 16 in the Town of Olean. Claimant asserts that at the time of that accident the road surface was unreasonably dangerous in that it was covered with three, inches of snow. It is undisputed that on the preceding day a snowstorm struck the area. Given these circumstances, claimant should be permitted to file a claim alleging respondent’s breach of its nondelegable duty to maintain State Route 16 in a reasonably safe condition (see, D’Alessio v State of New York, 147 AD2d 791, 792-793; Freund v State of New York, 137 AD2d 908, lv denied 72 NY2d 802). Claimant should also be permitted to assert a claim that respondent failed to develop a reasonable snow removal plan or failed reasonably to implement the plan (see, Dubacs v State of New York, 140 AD2d 968; see also, Friedman v State of New York, 67 NY2d 271; Weiss v Fote, 7 NY2d 579, 589, rearg denied 8 NY2d 934). (Appeal from order of Court of Claims, NeMoyer, J.—late notice of claim.) Present—Boomer, J. P., Green, Pine, Davis and Lowery, JJ.