Jovany Jomarron v State of New York

Jomarron v State of New York 2005 NY Slip Op 08954 [23 AD3d 527] November 21, 2005 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 18, 2006

Jovany Jomarron, Appellant,
v
State of New York, Respondent.

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In a claim to recover damages for personal injuries, the claimant appeals from an order of the Court of Claims (Lack, J.), dated September 30, 2004, which denied his motion for leave to file a late claim pursuant to Court of Claims Act § 10 (6) and granted the cross motion of the State of New York to dismiss the late claim.

Ordered that the order is reversed, on the facts and as a matter of discretion, with costs, the motion is granted, the cross motion is denied, and the late claim is deemed filed.

"Court of Claims Act § 10 (6) permits a court, in its discretion, upon consideration of certain enumerated factors, to allow a claimant to file a late claim . . . No one factor is deemed controlling, nor is the presence or absence of any one factor dispositive" (Broncati v State of New York, 288 AD2d 172, 173 [2001]; see Qing Liu v City Univ. of N.Y., 262 AD2d 473, 474 [1999]). Even if the excuse for failing to file a timely claim is "not compelling," the denial of a motion to file a late claim may, as here, constitute an improvident exercise of discretion where the delay is minimal, the State suffered no prejudice, and there may be issues of fact as to the merits of the claim (see Matter of Morales v State of New York, 292 AD2d 455, 456 [2002]; Marcus v State of New York, 172 AD2d 724, 725 [1991]). Crane, J.P., Ritter, Goldstein and Lifson, JJ., concur.