Vega v. State of New York

Full title: EDWIN VEGA, CLAIMANT-RESPONDENT, v. STATE OF NEW YORK, DEFENDANT-APPELLANT

Court: Appellate Division of the Supreme Court of New York, Fourth Department

Date published: May 2, 2003

305 A.D.2d 1053 (N.Y. App. Div. 2003)

759 N.Y.S.2d 408

Opinion

CA 98-08256

May 2, 2003.

Appeal from an order of the Court of Claims (NeMoyer, J.), entered February 5, 1998, which denied defendant's motion to dismiss the claim.

ELIOT SPITZER, ATTORNEY GENERAL, ALBANY (ROBERT M. GOLDFARB OF COUNSEL), FOR DEFENDANT-APPELLANT.

PRESENT: PINE, J.P., HURLBUTT, KEHOE, GORSKI, AND HAYES, JJ.

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously reversed on the law without costs, the motion is granted and the claim is dismissed.

Memorandum:

The Court of Claims erred in denying defendant's motion to dismiss the claim as time-barred. Claimant did not properly file and serve the claim within 90 days after the accrual of the claim, nor did he properly serve a notice of intention to file a claim within that 90-day period ( see Court of Claims Act 10; 11 [a] [i]; see also Mallory v. State of New York, 196 A.D.2d 925, 926; Andriola v State of New York, 53 A.D.2d 966, lv denied 40 N.Y.2d 803).