Perry v. State
| Decision Date | 27 July 1978 |
| Parties | Jeanne PERRY, Appellant, v. STATE of New York, Respondent. |
| Court | New York Supreme Court — Appellate Division |
Barton & Vesel, Forest Hills (Martin L. Baron, Forest Hills, of counsel), for appellant.
Louis J. Lefkowitz, Atty. Gen. (Michael F. Colligan, Albany, of counsel), for respondent.
Before MAHONEY, P. J., and GREENBLOTT, MAIN, MIKOLL and HERLIHY, JJ.
Appeal from an order of the Court of Claims, entered May 16, 1977, which denied claimant's motion for an order deeming a filed document a claim, Nunc pro tunc, and directing that the matter be placed on the Trial Calendar.
Alleging that she sustained personal injuries on December 20, 1974, when she fell on a street in the Village of Hempstead, Nassau County, claimant filed with the Clerk of the Court of Claims on March 19, 1975, 12 copies of a document setting forth her intention to file a claim against the State in the amount of $50,000. Two days later on March 21, 1975, which was the 91st day after the subject claim accrued, the Attorney-General received a copy of the same notice and acknowledged the receipt thereof in a letter to claimant's attorneys. The original notice was received by the Clerk of the Court of Claims on March 31, 1975, and by letter dated the following day wherein the notice was characterized as a "Notice of Intention to File a Claim", the Clerk returned 11 copies thereof to claimant's attorneys because only an original and one copy were required when filing a Notice of Intention. No further action was taken until January 26, 1977 when claimant mailed 11 copies of the notice to the Clerk and indicated that said notice had been intended to be a notice of claim. Returning the 11 copies, the Clerk advised claimant to make a motion to have the "Notice of Intention" deemed to be a notice of claim as of the date of the original filing, and claimant so moved by Notice of Motion dated March 15, 1977. Holding that it was without jurisdiction in the matter because the notice, whatever its character, had not been served on the Attorney General within 90 days after the accrual of the claim (see Court of Claims Act, § 10, subd. 3, § 11), the Court of Claims denied the motion, and this appeal ensued.
We hold that the order appealed from should be affirmed. Claimant's contentions to the contrary notwithstanding, the record amply supports the court's conclusion that the subject notice was not served upon the Attorney-General until the 91st day after the accident date. Such being the case, the court plainly lacked jurisdiction over the claim and, therefore, was justified in denying claimant's motion (Andriola v. State of New York, 53 A.D.2d 966, 385 N.Y.S.2d 834, mot. for lv. to app. den., 40 N.Y.2d 803, 387 N.Y.S.2d 1030, 356 N.E.2d 483; Dependable Trucking Co. v. New York State Thruway Auth., 41 A.D.2d 985, 343 N.Y.S.2d 615).
In so ruling, we would point out in conclusion that on September 1, 1976, the effective date of subdivision 6 of section 10 of the Court...
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