Doe v. State

• Decision Date: 16 November 1995
• Parties: Jane DOE, Claimant-Appellant, v. The STATE of New York, Defendant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 57

634 N.Y.S.2d 57

221 A.D.2d 218

Jane DOE, Claimant-Appellant, v. The STATE of New York, Defendant-Respondent.

Supreme Court, Appellate Division,

First Department.

Nov. 16, 1995.

K.D. Porter, for Claimant-Appellant.

D. Hurley, for Defendant-Respondent.

Before ROSENBERGER, J.P., and RUBIN, ASCH, WILLIAMS and MAZZARELLI, JJ.

MEMORANDUM DECISION.

Order, Court of Claims, New York County (Gerard Weisberg, J.), entered July 20, 1993, which denied claimant's motion for an order permitting her to file a late claim in accordance with Court of Claims Act §§ 10(5) and (6), unanimously affirmed, without costs.

In her motion to file a late notice of claim pursuant to Court of Claims Act § 10(5), which permits a claimant under a legal disability to file a claim within two years after the disability is removed, plaintiff asserted that the notice of claim was not made within the statutory 90 day period because she was under a mental disability from the time her causes of action accrued until the present. After an evidentiary hearing held to determine plaintiff's mental status during the 90 day period, the Court of Claims found that even if plaintiff was mentally disabled upon her discharge, by the summer of 1990 she was no longer disabled within the meaning of § 10(5), since by that time she had been able to meet with an attorney, assist in the preparation of the claim and had gotten a job. Inasmuch as § 10(5) is strictly applied (see, McCarthy v. Volkswagen, 55 N.Y.2d 543, 450 N.Y.S.2d 457, 435 N.E.2d 1072), and even post-traumatic stress disorder is insufficient to support its application (Id.), we agree that claimant's failure to present her claim by filing it with the clerk of the court and serving the Attorney-General (Court of Claims Act § 11[a] by August 1992 resulted in failure to obtain subject matter jurisdiction over defendant, which may not be waived (Finnerty v. New York State Thruway Auth., 75 N.Y.2d 721, 551 N.Y.S.2d 188, 550 N.E.2d 441). Relief pursuant to section 10(5) was therefore correctly denied.

The court also properly denied relief pursuant to § 10(6), which permits late filing of a claim in the court's discretion, since the plaintiff's causes of action were time barred (see, Berger v. State of New York, 171 A.D.2d 713, 716, 567 N.Y.S.2d 275; Muscat v. State of New York, 103 Misc.2d 589, 426 N.Y.S.2d 711) and the claims sounding in medical malpractice and negligence were also not legally viable (Prusack v. State of New York, 117...