Scott v. State

• Decision Date: 09 May 1994
• Citation: 204 A.D.2d 424,611 N.Y.S.2d 645
• Parties: Harold SCOTT, Appellant, v. STATE of New York, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 645

611 N.Y.S.2d 645

204 A.D.2d 424

Harold SCOTT, Appellant, v. STATE of New York, Respondent.

Supreme Court, Appellate Division Second Department.

May 9, 1994.

Harold Scott, appellant pro se.

G. Oliver Koppell, Atty. Gen., New York City (Peter G. Crary and Lenore B. Browne, of counsel), for respondent.

Before BALLETTA, J.P., and COPERTINO, HART and KRAUSMAN, JJ.

MEMORANDUM BY THE COURT.

In a claim to recover damages for negligence and malicious prosecution, the claimant appeals, as limited by his brief, from so much of an order of the Court of Claims (McCabe, J.), dated April 19, 1991, as dismissed his claim.

ORDERED that the order is affirmed insofar as appealed from, without costs or disbursements.

Contrary to the appellant's contention, we find that the court properly dismissed the two negligence causes of action. The appellant's failure to file a claim or a notice of his intention to file a claim within 90 days of the accrual of his negligence causes of action is a jurisdictional defect which deprived the court of subject matter jurisdiction (see, Court of Claims Act § 10[3]; Pelnick v. State of New York, 171 A.D.2d 734, 567 N.Y.S.2d 290; Zagarella v. State of New York, 149 A.D.2d 503, 539 N.Y.S.2d 803; Byrne v. State of New York, 104 A.D.2d 782, 480 N.Y.S.2d 225). Moreover, the State did not waive the jurisdictional defense asserted in its answer by subsequently attempting to withdraw it in its bill of particulars. Although the Court of Claims Act was amended in 1990 to provide that any defense based upon the failure to comply with the time limitations set forth in Court of Claims Act § 10 could be waived under certain circumstances, the amendment does not apply retroactively (see, Court of Claims Act § 11[c]; Pelnick v. State of New York, supra; Charbonneau v. State of New York, 148 Misc.2d 891, 561 N.Y.S.2d 876, affd. 178 A.D.2d 815, 577 N.Y.S.2d 534, affd. 81 N.Y.2d 721, 593 N.Y.S.2d 758, 609 N.E.2d 111). When the appellant filed his claim, a jurisdictional defect arising out of the failure to comply with Court of Claims Act § 10 could not be waived.

We reject the appellant's contention that the court improperly dismissed his malicious prosecution cause of action. Although the claim was filed within one year of the dismissal of the criminal charges against the appellant and was thus timely (see, Ciferri v. State of New York, 118 A.D.2d 676, 500 N.Y.S.2d 28; cf., Zagarella v. State of New York, supra ), the court properly determined that the claim failed to state a cause of action for malicious ...