Opinion
October 20, 1988
Appeal from the Court of Claims (Lyons, J.).
This claim arose out of an incident which occurred on October 10, 1984 when a State Police instructor intentionally kicked claimant. Claimant filed a notice of intention to file a claim on January 10, 1985, 92 days thereafter. The State did not plead claimant's failure to timely file a notice of intention to file a claim as an affirmative defense or move to dismiss the claim on that basis. Although, following trial, the Court of Claims did raise the issue sua sponte and indicated its intention to dismiss the claim after first giving the parties an opportunity to be heard, it nonetheless proceeded to render a decision in favor of claimant and award damages in the amount of $250. The State appeals on the sole ground that claimant's failure to file a notice of intention to file a claim within the 90 days prescribed by Court of Claims Act § 10 (3-b) deprived the Court of Claims of jurisdiction.
The judgment rendered in favor of claimant must be vacated and the claim dismissed. In view of claimant's failure to move for permission to file a late claim within the one-year Statute of Limitations applicable to a cause of action for intentional tort (see, CPLR 215; Court of Claims Act § 10; Downes v State of New York, 76 A.D.2d 967, 968), the late filing of a notice of intention to file a claim constitutes a nonwaivable defect, depriving the Court of Claims of jurisdiction ab initio to render judgment in favor of claimant (see, Lurie v. State of New York, 73 A.D.2d 1006, 1007, affd 52 N.Y.2d 849; Smith v. State of New York, 53 A.D.2d 756, 757, affd 41 N.Y.2d 1063; see also, Byrne v. State of New York, 104 A.D.2d 782, 783-784, lv denied 64 N.Y.2d 607; Luciano v. Fanberg Realty Co., 102 A.D.2d 94, 97-98; Matter of Welch v. State of New York, 71 A.D.2d 494, 497-499, lv denied 50 N.Y.2d 802; Perry v. State of New York, 64 A.D.2d 799, 800, lv denied 46 N.Y.2d 710).
Judgment reversed, on the law, without costs, and claim dismissed. Mahoney, P.J., Kane, Casey, Yesawich, Jr., and Mercure, JJ., concur.