Scarver v. State

Full title: HUEY SCARVER et al., Appellants, v. STATE OF NEW YORK, Respondent

Court: Appellate Division of the Supreme Court of New York, Fourth Department

Date published: Nov 8, 1996

233 A.D.2d 858 (N.Y. App. Div. 1996)

649 N.Y.S.2d 280

Opinion

November 8, 1996.

Order unanimously affirmed without costs.

Before: Present — Green, J.P., Pine, Wesley, Davis and Boehm, JJ.

Memorandum:

The Court of Claims denied claimants' motion, pursuant to Court of Claims Act § 10 (6), to file a late notice of claim against the State of New York insofar as claimants sought to assert a claim based upon a violation of Labor Law § 241 (6). "`A determination by the Court of Claims to grant or deny a motion for permission to file a late notice of claim lies within the broad discretion of that court and should not be disturbed absent a clear abuse of that discretion'" ( Ledet v State of New York, 207 AD2d 965, 965-966, quoting Matter of Gavigan v State of New York, 176 AD2d 1117, 1118). Moreover, although the court must consider the six factors enumerated in Court of Claims Act § 10 (6), those factors are not exhaustive and no one factor is controlling ( see, Ledet v State of New York, supra, at 966).

Here, a consideration of the enumerated factors weighs against granting claimants' motion. First, claimants failed to provide a reasonable excuse for the delay. Second, there is insufficient proof of notice to the State of the essential facts constituting the claim. Third, there is another remedy available to claimants. Fourth, claimants failed to show that their claim is meritorious because they failed either to specify any provisions of the Industrial Code allegedly violated by the State or to set forth sufficient facts to determine the manner in which the accident occurred. Claimants' general allegation that the State violated Labor Law § 241 (6), without more, is insufficient to establish that the claim is meritorious.

Although the State had the opportunity to investigate the claim and was not prejudiced by claimants' failure to file the claim in a timely fashion, those factors do not mandate granting the requested relief. Thus, we conclude that the court did not abuse its discretion in denying claimants' motion. (Appeal from Order of Court of Claims, NeMoyer, J. — Late Notice of Claim.)