Opinion
2018–09005
10-23-2019
Michael DORR, Appellant, v. STATE of New York, Respondent. (Claim No. 121375)
Frank N. Ambrosino, Smithtown, NY, for appellant. Letitia James, Attorney General, New York, N.Y. (Anisha S. Dasgupta and Eric R. Haren of counsel), for respondent.
Frank N. Ambrosino, Smithtown, NY, for appellant.
Letitia James, Attorney General, New York, N.Y. (Anisha S. Dasgupta and Eric R. Haren of counsel), for respondent.
WILLIAM F. MASTRO, J.P., REINALDO E. RIVERA, ROBERT J. MILLER, LINDA CHRISTOPHER, JJ.
DECISION & ORDER ORDERED that the order is affirmed, with costs.
On March 5, 2012, the claimant, while residing at a state drug treatment facility, allegedly sustained injuries when he jumped out of the facility's second-story window. The claimant filed a claim in the Court of Claims on May 31, 2012. However, the claim was not served on the Attorney General of the State of New York until June 6, 2012, 93 days after March 5, 2012. In October 2017, after the expiration of the three-year statute of limitations applicable to the claim (see CPLR 214 ), the defendant moved to dismiss the claim for failure to serve a timely claim. The claimant cross-moved for leave to file a late claim pursuant to Court of Claims Act § 10(6). In the order appealed from, the Court of Claims granted the defendant's motion and denied the claimant's cross motion.
A claim or notice of intention to file a claim must be filed and served upon the attorney general within 90 days after the accrual of a negligence claim (see Court of Claims Act § 10[3] ). Pursuant to Court of Claims Act § 10(6), the Court of Claims has discretion to permit the filing of a late claim at any time before the action is time-barred. "[T]he court does not possess the discretion to reinstate time-barred causes of action" ( Berger v. State of New York , 171 A.D.2d 713, 716, 567 N.Y.S.2d 275 ; see Chaudry v. State of New York , 167 A.D.3d 704, 87 N.Y.S.3d 507 ; Golia v. State of New York , 162 A.D.3d 861, 80 N.Y.S.3d 87 ). Once the applicable limitations period expired in this case, the Court of Claims was without authority either to entertain a motion for leave to file a late claim, or, sua sponte, to grant such relief (see Roberts v. City Univ. of N.Y. , 41 A.D.3d 825, 839 N.Y.S.2d 514 ; Crum & Foster Ins. Co. v. State of New York , 25 A.D.3d 643, 811 N.Y.S.2d 735 ). Accordingly, we agree with the determination of the court to grant the defendant's motion to dismiss the claim for failure to serve a timely claim and to deny the claimant's cross motion for leave to file a late claim.
The claimant's remaining contentions are either without merit or based on matter dehors the record.
MASTRO, J.P., RIVERA, MILLER and CHRISTOPHER, JJ., concur.