Opinion
July 13, 1990
Appeal from the Court of Claims, NeMoyer, J.
Present — Boomer, J.P., Green, Pine, Davis and Lowery, JJ.
Order unanimously reversed on the law without costs and motion granted. Memorandum: The Court of Claims abused its discretion in denying claimant's application for leave to file a late claim on the ground that the claim does not appear to have merit under the circumstances presented herein. The record demonstrates that on November 6, 1987, claimant sustained personal injuries when the pickup truck in which she was a passenger slid out of control, crossed the center line of the highway and became involved in a three vehicle accident on State Route 16 in the Town of Olean. Claimant asserts that at the time of that accident the road surface was unreasonably dangerous in that it was covered with three inches of snow. It is undisputed that on the preceding day a snowstorm struck the area. Given these circumstances, claimant should be permitted to file a claim alleging respondent's breach of its nondelegable duty to maintain State Route 16 in a reasonably safe condition (see, D'Alessio v. State of New York, 147 A.D.2d 791, 792-793; Freund v. State of New York, 137 A.D.2d 908, lv denied 72 N.Y.2d 802). Claimant should also be permitted to assert a claim that respondent failed to develop a reasonable snow removal plan or failed reasonably to implement the plan (see, Dubacs v. State of New York, 140 A.D.2d 968; see also, Friedman v. State of New York, 67 N.Y.2d 271; Weiss v. Fote, 7 N.Y.2d 579, 589, rearg denied 8 N.Y.2d 934).