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


AZQUEZ, Appellant, v. STATE OF NEW YORK, Respondent.


Decided: October 28, 2010

Before:  Cardona, P.J., Lahtinen, Kavanagh, McCarthy and Egan Jr., JJ. Lipsitz, Green, Scime and Cambria, L.L.P., Buffalo (John A. Collins of counsel), for appellant. Andrew M. Cuomo, Attorney General, Albany (Michael S. Buskus of counsel), for respondent.


Calendar Date:  September 13, 2010

Appeal from an order of the Court of Claims (Collins, J.), entered March 17, 2009, which, among other things, denied claimant's cross application pursuant to Court of Claims Act § 10(6) for permission to file a late claim.

In March 2001, claimant was sentenced to a prison term for attempted burglary in the first degree and attempted robbery in the first degree.   The sentencing court did not address mandatory postrelease supervision (hereinafter PRS) and, consistent with procedure followed prior to the Court of Appeals' decision in Matter of Garner v New York State Dept. of Correctional Servs.  (10 NY3d 358 [2008] ), the Department of Correctional Services added PRS to claimant's term.   After being released from prison in 2003, claimant violated his PRS twice, resulting in jail time of two months in 2004 and nearly six months beginning in September 2007.   In July 2008, he filed and served a claim alleging, among other things, false imprisonment premised upon the two jail terms imposed during his PRS. Defendant moved to dismiss the claim as untimely and claimant cross-moved for permission to file a late claim (see Court of Claims Act § 10[6] ).   The Court of Claims granted defendant's motion and denied claimant's cross motion.   Claimant appeals.

Claimant contends that his proposed claim has merit and, accordingly, that the Court of Claims erred in not granting his cross motion.   The Court of Claims addressed in its written decision each of the pertinent factors set forth in Court of Claims Act § 10(6) and determined, among other things, that claimant had not established a reasonable excuse for his delay in filing the claim and that the proposed claim lacked merit.   Our recent decisions establish that, contrary to claimant's contention, the Court of Claims did not err in concluding that the proposed claim lacked merit (see Nazario v. State of New York, 75 AD3d 715, 717-718 [2010], lv denied _ NY3d _ [Oct. 21, 2010];  Carollo v. State of New York, 75 AD3d 736, 737 [2010], lv denied _ NY3d _ [Oct. 21, 2010] ).   Denial of the motion for permission to file a late claim was, under the circumstances, well within the discretion of the Court of Claims (see Langner v. State of New York, 65 AD3d 780, 782-783 [2009];  Matter of Martinez v. State of New York, 62 AD3d 1225, 1226-1227 [2009];  Matter of Magee v. State of New York, 54 AD3d 1117, 1118 [2008] ).

Cardona, P.J., Kavanagh, McCarthy and Egan Jr., JJ., concur.

ORDERED that the order is affirmed, without costs.


Michael J. Novack

Clerk of the Court

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