IN RE: Josh BROWN

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Supreme Court, Appellate Division, Third Department, New York.

IN RE: Josh BROWN, Appellant, v. STATE of New York, Respondent.

Decided: June 26, 2008

Before:  PETERS, J.P., SPAIN, CARPINELLO, LAHTINEN and MALONE JR., JJ. Josh Brown, Romulus, appellant pro se. Andrew M. Cuomo, Attorney General, Albany (Kathleen M. Treasure of counsel), for respondent.

Appeal from an order of the Court of Claims (Milano, J.), entered September 4, 2007, which denied claimant's application pursuant to Court of Claims Act § 10(6) for permission to file a late notice of claim.

 Claimant, a prison inmate, alleges that on February 27, 2006 he was discriminated against due to his sexual orientation and, in violation of his rights prohibiting cruel and unusual punishment under the U.S. Constitution 8th Amendment, he was denied adequate medical care when a nurse practitioner at Clinton Correctional Facility in Clinton County denied his request for pain medication and refused to order him a brassiere.   After failing to timely file either a notice of claim or a notice of intention, claimant sought permission to file a late notice of claim.   The Court of Claims denied the application and claimant now appeals.

 We affirm.  “The Court of Claims is vested with broad discretion to grant or deny a motion for permission to file a late claim following the consideration of the statutory factors enumerated in Court of Claims Act § 10(6)” (Matter of Gonzalez v. State of New York, 299 A.D.2d 675, 675, 749 N.Y.S.2d 186 [2002] [citation omitted];  accord Matter of Robinson v. State of New York, 35 A.D.3d 948, 949, 826 N.Y.S.2d 461 [2006] ).   While no single statutory factor is considered controlling, the denial of an application will not be disturbed where “the excuse offered for the delay is inadequate and the proposed claim is of questionable merit” (Matter of Gonzalez v. State of New York, 299 A.D.2d at 675, 749 N.Y.S.2d 186;  see Matter of P.A. v. State of New York, 277 A.D.2d 671, 672, 716 N.Y.S.2d 423 [2000] ).   After a thorough review of the record, we cannot conclude that the Court of Claims abused its discretion in denying claimant's application.

ORDERED that the order is affirmed, without costs.

LAHTINEN, J.

PETERS, J.P., SPAIN, CARPINELLO and MALONE JR., JJ., concur.

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