Jerrett v. State

Order unanimously reversed on the law and in the exercise of discretion without costs and motion denied. Memorandum: The Court of Claims abused its discretion in granting claimant’s motion to serve a late claim. The court properly found that three of the statutory factors set forth in Court of Claims Act § 10 (6) weighed against claimant, to wit, that there was no valid excuse for claimant’s delay in filing the claim, that the State did not have timely notice of the essential facts constituting the claim, and that the State did not have an opportunity to investigate the circumstances underlying the claim. In addition, the remaining statutory factors do not weigh heavily in claimant’s favor. Claimant’s assertion that the State had the responsibility for snow removal in the area where the accident occurred on a Federal Air Force base is strongly refuted by the State’s evidentiary submissions in opposition to the application for permission to serve a late claim. Also, it appears that claimant has received Federal workers’ compensation benefits as a result of this accident. Thus, we conclude that the court abused its discretion in granting plaintiff’s application (see, Matter of Garguiolo v New York State Thruway Auth., 145 AD2d 915; Nicometti v State of New York, 144 AD2d 1036, lv denied 73 NY2d 710). (Appeal from order of Court of Claims, Margolis, J.—late notice of claim.) Present—Callahan, J. P., Denman, Boomer, Lawton and Davis, JJ.