Kurtz v. State
| Citation | 40 A.D.2d 917,338 N.Y.S.2d 345 |
| Decision Date | 30 November 1972 |
| Docket Number | No. 45963,45963 |
| Parties | August KURTZ, Appellant, v. STATE of New York, Respondent. Claim |
| Court | New York Supreme Court Appellate Division |
Arthur A. Snyder, New York City, for appellant.
Louis J. Lefkowitz, Atty. Gen. (Jeremiah Jochnowitz, Albany, of counsel), for respondent.
Before HERLIHY, P.J., and STALEY, GREENBLOTT, SWEENEY and REYNOLDS, JJ.
Appeal from an order of the Cort of Claims, entered April 26, 1967, which granted a motion by respondent to dismiss the first, second and third causes of action. No appeal is taken from so much of the order which denied the motion to dismiss the fourth cause of action.
In October of 1946 appellant was indicted for the crime of murder in the second degree. On October 25, 1946, by an order of a justice of the Supreme Court, he was committed for observation to Matteawan State Hospital for a 60-day period. In his first cause of action, appellant alleges that the order was void on its face and that he was illegally detained beyond the 60 days.
On February 13, 1947 appellant was returned to Bellevue Hospital. After examination by psychiatrists, he was found to be incapable of understanding the charges against him or of making a defense, and on March 25, 1947 he was ordered to be recommitted to Matteawan 'there to be safely kept and detained * * * until he is no longer in such state of insanity as to be incapable of understanding the charge against him or of making his defense thereto'. He remained in Matteawan on this second commitment until May 28, 1963. During his detention, he filed numerous habeas corpus petitions and one Coram nobis application, all of which were denied. Appellant's second cause of action alleges that his commitment and detention pursuant to the order of March 25, 1947 was void.
In his third cause of action, appellant alleges that he was sance and competent at all times during his stay at Matteawan, and that the officials were negligent in failing to discover this. Appellant's fourth cause of action alleges that Matteawan officials wrongfully failed to treat him for various physical illnesses. Although the Court of Claims dismissed the first three causes of action on the ground that no causes of action were stated, we need not reach this question.
Subdivision 3 of section 10 of the Court of Claims Act provides:
3. A claim to recover damages for injuries to property or for personal injury caused by the tort of an officer or employee of the state while acting as such officer or employee, shall be filed within ninety days after the accrual of such claim unless the claimant shall within such time file a written notice of intention to file a claim therefor, in which event the claim shall be filed within two years after the accrual of such claim.
Subdivision 5 of section 10 provides in part that 'if the claimant shall be under legal disability, the claim may be presented within two years after such disability is removed.' Since the requirements of section 10 concerning timeliness of filing are jurisdictional, (Bommarito v. State of New York, 35 A.D.2d 458, 317 N.Y.S.2d 581; Crane v. State of New York, 29 A.D.2d 1001, 289 N.Y.S.2d 521) at any stage of the action the court may, Ex mero motu refuse to proceed further and dismiss the action (see 4 Weinstein-Korn-Miller, N.Y.Civ.Prac., 3211.10).
Appellant was released from Matteawan on May 28, 1963. On June 4, 1963 he was committed to Bellevue for 60 days. Thus, while a person...
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