Lurie v. State

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 1007 Claims as required by the statute, but only with the office of the Attorney-General. An affirmance is required. The filing requirements of subdivision 2 of section 10 and section 11 of the Court of Claims Act are jurisdictional in nature and, therefore, must be strictly construed (Buckles v State of New York, 221 NY 418, 423-424; De Marco v State of New York, 43 AD2d 786, affd 37 NY2d 735). 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 (Matter of Welch v State of New York, 71 AD2d 494; cf. Dimovitch v State of New York, 33 AD2d 146, 149). 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 NY 91, 95). Judgment affirmed, without costs. Mahoney, P. J., Greenblott, Sweeney and Staley, Jr., JJ., concur.