Opinion
January 14, 1971
Appeal by the claimant from an order of the Court of Claims, entered October 29, 1968, which dismissed so much of his claim as was based on hospitalization (custody) prior to his release from a State Institution in September of 1946, on the ground that the court did not have jurisdiction thereof as it was not timely filed. Order reversed, on the law and the facts, with costs, without prejudice to such subsequent proceedings as may be had in regard to the jurisdiction of the court. The record contains a prior order of the court which recites "that the above numbered claim be considered as the claim of the claimant duly and timely filed." Upon its face, the claim does not establish that there was a complete and final discharge of the claimant from custody prior to the ending of his last commitment in 1967. Under such circumstances the burden was upon the respondent to establish that at some time prior to the filing of the claim the jurisdictional time limits of the Court of Claims Act had expired so as to preclude recovery for all or some part of the claim. Upon the oral arguments before the trial court the respondent conceded that although there was a discharge from physical custody in September of 1946 there was a continuing convalescent status and, accordingly, the discharge was not final. (Cf. Boland v. State of New York, 35 A.D.2d 855.) The respondent's representative did not state as an unqualified fact that the discharge from convalescent status occurred prior to a subsequent reimposition of physical custody in 1948. Furthermore, the record does not contain any documentary proof as to whether or not a convalescent status would have expired prior to the recommitment in 1948. The appellant upon the oral argument stated: " If the statute begins to toll at the time the Attorney General states it, then I would really be out of order here." (Emphasis added.) Such a concession as to the law does not serve as a concession to establish the facts as "believed" by the respondent's representative. Upon the present record the respondent has not clearly established that there is a jurisdictional defect as to any part of the appellant's claim. However, the jurisdiction of the court remains subject to attack and, accordingly, the reversal of the present order does not preclude raising such issue again. Herlihy, P.J., Reynolds, Staley, Jr., Greenblott and Cooke, JJ., concur.