Opinion
April 28, 1994
Appeal from the Supreme Court, Rensselaer County (Spain, J.).
Petitioner became an Associate Public Health Engineer and also Director of Environmental Health in Rensselaer County on June 2, 1986. On May 26, 1989 respondent, by letter from the Rensselaer County Executive, terminated petitioner from employment after adopting the findings of the Hearing Officer who found various acts of misconduct and insubordination. Petitioner's dismissal was confirmed in this Court on December 5, 1991 and leave to appeal to the Court of Appeals was denied (see, Matter of Plante v Buono, 172 A.D.2d 81, lv denied 79 N.Y.2d 756). Petitioner moved by order to show cause dated March 6, 1992 for an order granting him leave to file a late notice of claim against respondent on the basis that his termination resulted solely from respondent's belief that he was disabled in violation of Executive Law § 296. His application was denied and this appeal ensued.
We affirm. Supreme Court did not abuse its discretion by denying petitioner's application. The trial court is vested with broad discretion in determining whether a late notice of claim should be permitted (see, Matter of Logan v City of Albany, 154 A.D.2d 861). Obviously, one important factor to consider is the reason for the delay. Petitioner argues that he did not file timely because, after his termination in May 1989, he was not able to concentrate in order to make decisions and he was unaware of the notice requirement. The proffered excuses are not sufficient (see, Matter of Andrews v Village of Sherburne, 140 A.D.2d 790, lv denied 72 N.Y.2d 807; Giordano v New York City Hous. Auth., 128 A.D.2d 671). In any event, the record indicates that petitioner knew of the notice of claim requirement shortly after the expiration of the 90-day period but did not proceed with the application for over two years. Petitioner, after consultation with his attorney, decided that it would be better for him to commence a proceeding to challenge the termination and if that was unsuccessful he would then apply for permission to file and serve a late notice of claim. Under these circumstances, the long delay was inexcusable (see, Matter of Morgan v City of Elmira, 115 A.D.2d 885, 887, appeal dismissed 67 N.Y.2d 905) and the application was properly denied.
Although it is not necessary to conclusively establish the merits of the claim (see, Matter of Logan v City of Albany, supra, at 862), it is noted that petitioner is collaterally estopped from relitigating the reasons for his termination, i.e., misconduct and insubordination, because the courts have already confirmed that determination (see, Conti v Lende, 194 A.D.2d 892, lv denied sub nom. Conti v Albany Med. Ctr., 82 N.Y.2d 657). The prior CPLR article 78 proceeding afforded petitioner a full and fair opportunity to litigate the reasons for his termination (see, Mahota v City of Hudson, 179 A.D.2d 845, lv denied 79 N.Y.2d 760).
We have considered the remaining arguments and find them to be without merit.
Mercure, White and Weiss, JJ., concur. Ordered that the order is affirmed, without costs.