Lurie v. State, 59811

• Decision Date: 24 January 1980
• Docket Number: No. 59811,59811
• Citation: 423 N.Y.S.2d 969,73 A.D.2d 1006
• Parties: Joseph LURIE, Individually and as Administrator of the Estate of Miriam Lurie, Deceased, Appellant, v. STATE of New York et al., Respondents. (Claim)
• Court: New York Supreme Court — Appellate Division

Page 969

423 N.Y.S.2d 969

73 A.D.2d 1006

Joseph LURIE, Individually and as Administrator of the Estate of Miriam Lurie, Deceased, Appellant, v. STATE of New York et al., Respondents. (Claim No. 59811.)

Supreme Court, Appellate Division, Third Department.

Jan. 24, 1980.

Richter & Werbalowsky (Lawrence R. Shelton, Kingston, of counsel), for appellant.

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

Before MAHONEY, P. J., and GREENBLOTT, SWEENEY, STALEY and MIKOLL, JJ.

MEMORANDUM DECISION.

Appeal from a judgment of the Court of Claims, entered January 17, 1979, which granted the State's motion to dismiss the claim.

The claim herein alleges that decedent's death on May 14, 1975 was caused by the negligence of the respondent. The motion to dismiss was based on the fact that the claim was not filed until November 25, 1975, more than 90 days following claimant's appointment as administrator. The notice of intention to file a claim was not filed with the clerk of the Court of Claims as required by the statute, but only with the office of the Attorney General. An affirmance is required.

The filing requirements of sections 10 (subd. 2) and 11 of the Court of Claims Act are jurisdictional in nature and, therefore, must be strictly construed (Buckles v. State of New York, 221 N.Y. 418, 423-24, 117 N.E. 811, De Marco v. State of New York, 43 A.D.2d 786, 350 N.Y.S.2d 230, affd. 37 N.Y.2d 735, 374 N.Y.S.2d 619, 337 N.E.2d 131). Claimant's failure to timely file a notice of intention or a claim with the clerk of the Court of Claims within 90 days of his appointment as administrator of the decedent's estate cannot be excused on the ground that the State was not prejudiced thereby (Welch v. State of New York, App.Div., --- N.Y.S.2d ---- (1979, 4th Dept.); cf. Dimovitch v. State of New York, 33 A.D.2d 146, 149, 307 N.Y.S.2d 26, 29). In the absence of legislative change, this court is not free to dispense with statutory jurisdictional requirements under principles of "abstract justice fitting the particular case" (see Ponsrok v. City of Yonkers, 254 N.Y. 91, 95, 171 N.E. 917, 918).

Judgment affirmed, without costs.

MAHONEY, P. J., and GREENBLOTT, SWEENEY and STALEY, JJ., concur.

MIKOLL, J., dissents and votes to reverse in the following memorandum.

MIKOLL, Justice (dissenting).

I respectfully dissent.

Shortly before trial was to commence, it was discovered that according to the records of the Court of Claims no notice of intention to file a claim had been filed with the clerk in this case. The claim had not been filed until November 25, 1975, which was more than 90 days after claimant had been appointed administrator. The court granted the Attorney General's motion to dismiss, ruling that it lacked jurisdiction because the notice had never been received by the clerk. It is conceded that the claim was filed with both the clerk and the Attorney General within two years of decedent's death and that the Attorney...