Opinion
June 19, 1967
Appeal by the State from an order of the Court of Claims which (1) denied its motion to dismiss, as untimely filed, claims for damages for personal injuries and property damage resulting from a motor vehicle accident allegedly caused by the State's negligence, and (2) granted claimants' cross motion for permission to file late claims. The claims were mailed to the Clerk of the Court of Claims on June 9, 1964, the last day of the statutory 90-day period within which tort claims or notices of intention are required to be filed (Court of Claims Act, § 10, subd. 3), and were received by the Clerk on June 10, 1964, the 91st day after their accrual. The papers were neither signed nor verified and copies bearing signatures and proper affidavits of verification were later supplied, these being received by the clerk on June 24, 1964, long after the expiration of the period. Assuming, nevertheless, for the purpose of reaching the basic question involved, that the copies initially received were valid and sufficient, although unsigned and unverified, or that their deficiencies were subject to correction, the Clerk's receipt of them on the 91st day did not constitute timely filing, inasmuch as a claim "shall be filed by delivering it at the clerk's office in Albany * * * or upon the receipt thereof at the clerk's office in Albany by mail or by express." (Rules of Ct. of Claims, rule 11; Wheeler v. State of New York, 204 Misc. 219, affd. 285 App. Div. 1008; Stewart v. State of New York, 15 Misc.2d 135.) Claimants' remedy was to apply for permission to file a late claim "within two years after the accrual thereof" (Court of Claims Act, § 10, subd. 5) but claimants' application therefor was also untimely, their notice of motion, treated by the court as an application of that nature, being dated June 30, 1966, more than 27 months after the accrual of the claims on the occurrence of the accident on March 11, 1964. Order reversed, on the law; the State's motion to dismiss granted; and claimants' cross motion denied, without costs. Gibson, P.J., Herlihy, Aulisi, Staley, Jr., and Gabrielli, JJ., concur in memorandum by Gibson, P.J.