| Matter of Magee v State of New York |
| 2008 NY Slip Op 06912 [54 AD3d 1117] |
| September 18, 2008 |
| Appellate Division, Third Department |
| In the Matter of Curtis Magee, Appellant, v State of New York,Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Owen Demuth of counsel), forrespondent.
Rose, J. Appeal from a judgment of the Court of Claims (Ferreira, J.), entered June 20, 2007,which, among other things, denied claimant's application pursuant to Court of Claims Act§ 10 (6) for permission to file a late notice of claim.
On February 14, 2004, while incarcerated at Eastern Correctional Facility in Ulster County,claimant's knee "popped out" during a basketball game on a facility court. At the time, claimantindicated that the injury occurred when he collided with another player while going for arebound. Claimant underwent surgery the following day.
Claimant served his notice of intention to file a claim on May 24, 2004 and served his claimon October 11, 2005 alleging that his injury was caused by stepping in a pothole and/or theuneven playing surface of the facility basketball court. Defendant answered, raising timeliness asa defense, and claimant moved for permission to file a late claim pursuant to Court of Claims Act§ 10 (6). Defendant opposed that relief and cross-moved to dismiss the claim as untimely.The Court of Claims denied claimant's motion and granted defendant's cross motion, promptingthis appeal.
Claimant admittedly filed his notice of intention to file a claim beyond the 90-day limitationsperiod (see Court of Claims Act § 10 [3]) and, hence, the Court of Claims lackedsubject matter jurisdiction (see City ofNew York v State of New York, 46 AD3d 1168, 1170[*2][2007], lv denied 10 NY3d 705 [2008]; Matter of Best v State of New York, 42AD3d 699, 700 [2007]). As to the relief sought, "[i]t is well settled that the decision to grantor deny a motion for permission to file a late notice of claim lies within the broad discretion ofthe Court of Claims and should not be disturbed absent a clear abuse of that discretion"(Matter of Soble v State of New York, 189 AD2d 970, 970 [1993]; see Calco v Stateof New York, 165 AD2d 117, 119 [1991], lv denied 78 NY2d 852 [1991]). Weperceive no abuse of that discretion here.
Although the majority of the statutory factors set forth in Court of Claims Act § 10 (6)may be resolved in favor of claimant, the denial of an application will not be disturbed where, ashere, "the excuse offered for the delay is inadequate and the proposed claim is of questionablemerit" (Matter of Brown v State of NewYork, 52 AD3d 1136, 1136 [2008] [internal quotation marks and citations omitted];see Matter of Best v State of New York, 42 AD3d at 700). Even accepting that claimantdid not have access to the facility's law library during "most of the time" he was confined to thefacility's infirmary, the record reflects that he was discharged to his housing unit on April 2,2004, approximately six weeks before the expiration of the 90-day statutory period, at which timehe was ambulatory. Thus, claimant failed to demonstrate that his injury prevented him fromtimely filing and serving his notice of intention to file a claim. As to the merits of the claim, areview of the record as a whole, including claimant's belated and conclusory assertion that hisinjury was caused by a defect in the surface of the basketball court, does not "give reasonablecause to believe that a valid cause of action exists" (Sands v State of New York, 49 AD3d 444, 444 [2008]). Claimant'sremaining arguments on this point, to the extent not specifically addressed, have been examinedand found to be lacking in merit.
Mercure, J.P., Peters, Lahtinen and Kane, JJ., concur. Ordered that the judgment is affirmed,without costs.