PAGANO v. NEW YORK STATE THRUWAY AUTHORITY (1997)

In a claim to recover damages for wrongful death and personal injuries, etc., the claimants appeal from an order of the Court of Claims (Hanifin, J.), entered January 31, 1996, which denied their motion for leave to file a late claim.

ORDERED that the order is affirmed, without costs or disbursements.

In this claim arising from a motor vehicle accident which occurred on the New York State Thruway, the Court of Claims denied the claimants' prior application for leave to file a late claim without prejudice to a motion for the same relief, based upon evidence addressing certain aspects of the claimants' theory of recovery (see, Pagano v. New York State Thruway Authority, 235 A.D.2d 408, 652 N.Y.S.2d 99 [decided herewith] ).   The claimants subsequently did renew the motion for leave to file a late claim, and in the order which is the subject of this appeal, the Court of Claims denied the motion.

We find no improvident exercise of discretion in the denial of leave to file a late claim (see, Court of Claims Act § 10[6] ).   The claimants failed to submit evidence indicating that the area adjacent to the roadway was not designed or maintained in accordance with standards existing at the time of its construction (see, Van De Bogart v. State of New York, 133 A.D.2d 974, 976, 521 N.Y.S.2d 125;  Holscher v. State of New York, 59 A.D.2d 224, 226-227, 399 N.Y.S.2d 268, affd. 46 N.Y.2d 792, 413 N.Y.S.2d 920, 386 N.E.2d 831;  see also, Kissinger v. State of New York, 126 A.D.2d 139, 513 N.Y.S.2d 275).

MEMORANDUM BY THE COURT.