Lichtenstein v. State of New York

• Citation: 93 N.Y.2d 911,712 N.E.2d 1218,690 N.Y.S.2d 851
• Parties: MALKA LICHTENSTEIN, Individually and as Proposed Administratrix of the Estate of ABRAHAM LICHTENSTEIN, Deceased, Appellant, v. STATE OF NEW YORK, Respondent.
• Decision Date: 11 May 1999
• Court: New York Court of Appeals

93 N.Y.2d 911

712 N.E.2d 1218

690 N.Y.S.2d 851

MALKA LICHTENSTEIN, Individually and as Proposed Administratrix of the Estate of ABRAHAM LICHTENSTEIN, Deceased, Appellant, v. STATE OF NEW YORK, Respondent.

Court of Appeals of the State of New York.

Argued March 23, 1999.

Decided May 11, 1999.

Pollack, Pollack, Isaac & DeCicco, New York City (Brian J. Isaac of counsel), and Gersowitz, Libo & Korek, P. C., New York City (Jeff S. Korek and Edward H. Gersowitz of counsel), for appellant.

Eliot Spitzer, Attorney-General, Albany (Marlene O. Tuczinski, Peter H. Schiff and Peter G. Crary of counsel), for respondent.

Before: Chief Judge KAYE and Judges BELLACOSA, SMITH, LEVINE, CIPARICK, WESLEY and ROSENBLATT concur.

OPINION OF THE COURT MEMORANDUM.

The order of the Appellate Division should be affirmed, with costs.

Decedent sustained fatal injuries after he exited a gas station off State Highway 17, drove into oncoming traffic, and collided head-on with a vehicle traveling in the opposite direction. Claimant brought this negligence action against the State, asserting causes of action for wrongful death, personal injuries, and loss of consortium. She did not, however, commence the action in accordance with the requirements of Court of Claims Act § 10 (2) and (3), which prescribe the terms and conditions for bringing such claims against the State.

Owing to claimant's failure to comply with these sections, the Court of Claims determined that the action was never properly commenced and therefore dismissed it. The Appellate Division affirmed. In addition, the Court of Claims refused to grant claimant relief under Court of Claims Act § 10 (6), which gives the court discretionary power to allow the late filing of a claim upon consideration of a number of factors, including the merits of the case. The court, noting in part that decedent drove into the oncoming traffic lane despite signs warning against doing so, found that there was no apparent merit to claimant's claim. That ruling, however, which was also affirmed by the Appellate Division, is not now before us.

The appeal before us is governed by Dreger v New York State Thruway Auth. (81 NY2d 721, 724), in which we held that "[b]ecause suits against the State are allowed only by the State's waiver of sovereign immunity and in derogation of the common law, statutory requirements conditioning suit must be strictly construed," and that, accordingly, claimants who had not met the literal requirements of Court of Claims Act § 11 had not properly commenced their actions.

Court of Claims Act § 10 (2) and (3) contemplate that an...