Duffy v. State , 695 N.Y.S.2d 624 ( 1999 )

Graffeo, J.

Appeal from an order of the Court of Claims (Silverman, J.), entered June 23, 1998, which denied claimant’s application pursuant to Court of Claims Act § 10 (6) for permission to file a late notice of claim.

Claimant alleges that he sustained injuries to his back on August 29, 1997 while working at the Eastern Correctional Facility in Ulster County where he was incarcerated. According to the proposed claim, he was struck in the hip by a piece of wood while working with a saw which lacked safety guards. Claimant filed a notice of intention to file a claim on December 8, 1997 and thereafter applied for permission to file a late notice of claim. The Court of Claims denied the application and claimant appeals.

“It is well settled that the decision to grant or deny a motion for permission to file a late notice of claim lies within the broad discretion of the 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). In making its decision, the court must consider the factors enumerated in Court of Claims Act § 10 (6) and no single factor is deemed controlling (see, Matter of Donaldson v State of New York, 167 AD2d 805, 806).

As an excuse for the delay in filing, claimant contends that he was “hospitalized and bedridden since September 25, 1997”. Despite these impediments, claimant was able to file a notice of intention in December 1997 but he offered no explanation for his failure to do so earlier. Moreover, as noted by the Court of Claims, claimant gave no reason for his failure to file during the one-month period prior to the date of his initial hospitalization. With regard to the merits, no medical evidence was submitted to demonstrate a causal connection between the piece of wood striking him in the hip and the back condition for which he seeks damages from the State. Claimant’s medical records indicate that he sought treatment on September 3, 1997 for pain radiating down his right leg which began “while playing ball”. On September 17, 1997, claimant again sought treatment and was sent for an MRI of his spine. The notes in the medical record for that date indicate an abrupt onset of pain IV2 months earlier “during baseball”.

Where, as here, claimant failed to offer an acceptable excuse for the delay in filing the claim and the claim itself is of questionable merit, we will not disturb the Court of Claims’ exercise of discretion in denying claimant’s application for permission to file a late notice of claim (see, Matter of Soble v State of New York, supra).

Cardona, P. J., Yesawich Jr., Spain and Carpinello, JJ., concur. Ordered that the order is affirmed, without costs.