Paul v. State

• Decision Date: 07 December 1978
• Docket Number: No. 60672,60672
• Citation: 66 A.D.2d 908,410 N.Y.S.2d 939
• Parties: Yvrose PAUL et al., Respondents, v. STATE of New York et al., Appellants. (Claim)
• Court: New York Supreme Court — Appellate Division

Page 939

410 N.Y.S.2d 939

66 A.D.2d 908

Yvrose PAUL et al., Respondents, v. STATE of New York et al., Appellants. (Claim No. 60672.)

Supreme Court, Appellate Division, Third Department.

Dec. 7, 1978.

Louis J. Lefkowitz, Atty. Gen. (Morris, Duffy, Ivone & Jensen by Patricia D'Alvia, New York City, of counsel), for appellants.

Jay H. Tanenbaum, New York City (Lawrence J. Kaminsky, New York City, of counsel), for respondents.

Before KANE, J. P., and MAIN, LARKIN, HERLIHY and MIKOLL, JJ.

MEMORANDUM DECISION.

Appeal from an order of the Court of Claims, entered December 8, 1976, which denied a motion to dismiss the claim.

When this case was previously before this court, we affirmed an order of the Court of Claims, entered December 8, 1976, which denied a motion to dismiss the claim on the ground that it was time-barred. In that decision we stated:

Although at the time of the act complained of herein the outside limit for allowing the filing of late claims was two years after the accrual of the cause of action (former § 10, subd. 5, Court of Claims Act, amd. by L.1976, ch. 280, § 1, eff. Sept. 1, 1976), because the amendment allowing a filing any time within the statute of limitations period is remedial in nature it should be given retroactive effect (Paul v. State of New York, 59 A.D.2d 800, 398 N.Y.S.2d 768).

Subsequently, in Sessa v. State of New York, 63 A.D.2d 334, 335, 408 N.Y.S.2d 547, 548, we stated:

Seeking a reversal of the court's order denying their motion, claimants now argue that our earlier decisions in Paul v. State of New York (supra) and Lewis v. State of New York, 60 A.D.2d 675, 399 N.Y.2d 947 are controlling in their situation and that, in accordance therewith, subdivision 6 must be retrospectively applied to their claim. For the reasons that will follow, however, and particularly in light of the Court of Appeals subsequent holding in Matter of Beary v. City of Rye, 44 N.Y.2d 398, 406 N.Y.S.2d 9, 377 N.E.2d 453, we cannot agree and instead conclude that our position in Paul (supra) and Lewis (supra) must be overruled.

On August 8, 1978, we granted an application for reargument in the instant case and invited counsel to direct their briefs to the applicability of our decision in Sessa (supra) to the facts of this case. Upon said reargument, and in light of the decisions of this court and the Court of Appeals subsequent to our original position in the instant case, we overrule our prior decision in Paul (supra) and determine that the order of the Court of Claims which denied a motion to dismiss the instant claim must be reversed and the claim dismissed on the ground that it is time-barred. The facts in the instant case are amply set forth in our prior decision and need not be repeated at length herein (Paul v. State of New York, supra ).

The alleged malpractice occurred on November 15 or 16, 1973. The first notice of claim was filed on November 8, 1976. An application to file a late claim was made November 23, 1976. In our prior decision in the instant case, we stated "the late discovery excuses the late filing" (Paul v. State of New York, supra, 59 A.D.2d p. 801, 398 N.Y.S.2d p. 769.) We now hold that on the facts of this case, the late discovery theory enunciated in Flanagan v. Mount Eden Gen. Hosp. 24 N.Y.2d 427, 301 N.Y.S.2d 23, 248 N.E.2d 871, is inapplicable. Indeed, the Court of Appeals has expressly so stated in a case decided with Beary v. City of Rye (Supra; Merced v. New York City Health & Hospitals Corp., 44 N.Y.2d 398, 406 N.Y.S.2d 9, 377 N.E.2d 453). This case was time-barred and beyond judicial recall on September 1, 1976, which was the effective date of the amendment to § 10 (subd. 5) of the Court of Claims Act. Therefore, the motion to dismiss should have been granted (Beary v. City of Rye, supra; Sessa v. State of New York, supra ).

Decision, dated October 20, 1977, withdrawn; order, entered October 31, 1977, vacated; and order of the Court of Claims, entered December 8, 1976,...