Malkan
v.
State

Not overruled or negatively treated on appealinfoCoverage
Supreme Court, Appellate Division, Fourth Department, New York.Dec 23, 2016
42 N.Y.S.3d 898 (N.Y. App. Div. 2016)
42 N.Y.S.3d 898145 A.D.3d 1601A.D.3d2016 N.Y. Slip Op. 8746

12-23-2016

Jeffrey MALKAN, Claimant–Appellant, v. STATE of New York, Defendant–Respondent.

Richard E. Casagrande, Latham (Anthony J. Brock of Counsel), for claimant-appellant. Eric T. Schneiderman, Attorney General, Albany (Julie M. Sheridan of Counsel), for defendant-respondent.


Appeal from an order of the Court of Claims (Michael E. Hudson, J.), entered June 19, 2015. The order denied the motion of claimant for leave to file and serve a late claim.

Richard E. Casagrande, Latham (Anthony J. Brock of Counsel), for claimant-appellant.

Eric T. Schneiderman, Attorney General, Albany (Julie M. Sheridan of Counsel), for defendant-respondent.

MEMORANDUM:We reject claimant's contention that the Court of Claims erred in denying his motion seeking permission to file a late claim against defendant based upon its alleged breach of contract. “ ‘A determination by the Court of Claims to grant or deny a motion for permission to file a late ... 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 A.D.2d 965, 965–966, 616 N.Y.S.2d 831 ). Here, the court considered the requisite statutory factors and concluded that three of them favored claimant, i.e., notice, opportunity to investigate, and lack of substantial prejudice to defendant (see Court of Claims Act § 10[6] ; see also Ledet, 207 A.D.2d at 966, 616 N.Y.S.2d 831 ). We nonetheless decline to disturb the court's exercise of discretion inasmuch as we agree with the court's conclusions that claimant failed to demonstrate an adequate excuse for the delay, that the proposed claim lacks merit, and that claimant had and/or has alternative remedies (see Lange v. State of New York, 133 A.D.3d 1250, 1250, 18 N.Y.S.3d 900 ; Matter of Magee v. State of New York, 54 A.D.3d 1117, 1118, 863 N.Y.S.2d 840 ; Olsen v. State of New York, 45 A.D.3d 824, 824–825, 845 N.Y.S.2d 758 ).

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

SMITH, J.P., LINDLEY, DeJOSEPH, NEMOYER, and TROUTMAN, JJ., concur.