Baker v. State

• Citation: 587 N.Y.S.2d 801,186 A.D.2d 329
• Parties: Hezekiah E. BAKER, Appellant, v. STATE of New York, Respondent.
• Decision Date: 24 September 1992
• Court: New York Supreme Court Appellate Division

Page 801

587 N.Y.S.2d 801

186 A.D.2d 329

Hezekiah E. BAKER, Appellant, v. STATE of New York, Respondent.

Supreme Court, Appellate Division, Third Department.

Sept. 24, 1992.

Hezekiah E. Baker, in pro. per.

Robert Abrams, Atty. Gen. (Dennis Hurley, of counsel), Albany, for respondent.

Before MIKOLL, J.P., and LEVINE, MAHONEY, CASEY and HARVEY, JJ.

MEMORANDUM DECISION.

Appeal from an order of the Court of Claims (Lyons, J.), entered October 23, 1991, which, inter alia, granted the State's motion to dismiss the claim.

Neither claimant's notice of intention to file a claim nor the claim itself were filed within the time limitations set forth in Court of Claims Act § 10(3). In fact, the notice of intention was not filed until July 10, 1991, which was over two years beyond the accrual date of June 8, 1989. Insofar as the time limitations of the statute are jurisdictional, the Court of Claims properly dismissed the claim as untimely (see, Smith v. State of New York, 41 N.Y.2d 1063, 396 N.Y.S.2d 174, 364 N.E.2d 838; Kurtz v. State of New York, 40 A.D.2d 917, 338 N.Y.S.2d 345, aff'd 33 N.Y.2d 828, 351 N.Y.S.2d 973, 307 N.E.2d 46). We also reject claimant's contention that he falls within the time strictures of Court of Claims Act § 10(5), wherein a claim may be filed within two years following the termination of a legal disability. Any such defense ended on January 12, 1988 when it was judicially determined that claimant was not an incapacitated person. Given that the notice of intention was not filed until July 10, 1991 and that the claim was not filed until July 22, 1991, claimant failed to satisfy that statutory time provision as well (see, Kurtz v. State of New York, supra ). There is nothing in the record to support his claim of a continuing legal disability.

ORDERED that the order is affirmed, without costs.