Opinion
May 9, 1994
Appeal from the Court of Claims (McCabe, J.).
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; Pelnick v. State of New York, 171 A.D.2d 734; Zagarella v. State of New York, 149 A.D.2d 503; Byrne v State of New York, 104 A.D.2d 782). 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, affd 178 A.D.2d 815, affd 81 N.Y.2d 721). 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; cf., Zagarella v. State of New York, supra), the court properly determined that the claim failed to state a cause of action for malicious prosecution. In this regard, we note that the claim failed to set forth facts from which actual malice, i.e., a wrong or improper motive on the part of the State, could be reasonably inferred (see, Nardelli v. Stamberg, 44 N.Y.2d 500, 502-503; Buccieri v Franzreb, 201 A.D.2d 356; see also, Ferrara v. Guardino, 164 A.D.2d 932, 933; Mondello v. Mondello, 161 A.D.2d 690, mod 165 A.D.2d 867). Balletta, J.P., Copertino, Hart and Krausman, JJ., concur.