           SUPREME COURT OF THE STATE OF NEW YORK
             Appellate Division, Fourth Judicial Department

1214
CA 16-00538
PRESENT: SMITH, J.P., LINDLEY, DEJOSEPH, NEMOYER, AND TROUTMAN, JJ.


JEFFREY MALKAN, CLAIMANT-APPELLANT,

                      V                           MEMORANDUM AND ORDER

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.

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

     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 AD2d 965,
965-966). 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 AD2d
at 966). 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 AD3d 1250,
1250; Matter of Magee v State of New York, 54 AD3d 1117, 1118; Olsen v
State of New York, 45 AD3d 824, 824-825).




Entered:    December 23, 2016                   Frances E. Cafarell
                                                Clerk of the Court
