Nalley v. State , 25 Misc. 2d 1093 ( 1961 )

Sidney Squire, J.

These are two motions. Initially, the State moved to dismiss the claim herein filed on Rovember 22, 1960 because it violated the pertinent Statute of Limitations. Thereupon the claimant cross-moved to permit late filing of his claim or in the alternative (should it be determined that said pleading was untimely filed) to treat his filed “ Notice of Intention to File a Claim ” as the “ claim ” itself.

The events on which claimant predicates the State’s alleged negligence, occurred on March 9, 1958. That was the date of the accrual of his cause of action. As to that question of law, we agree with the position of the State. The unwarranted attempt of the claimant to regenerate the date of the statutory accrual of his action has no legal validity.

Claimant’s verified “Rotice of Intention to File a Claim” was filed on June 4, 1958 “ within ninety days after the accrual of such claim” (Court of Claims Act, § 10, subd. 3). His verified claim was filed on Rovember 22, 1960. That was not ‘ ‘ within two years after the accrual of such claim. ’ ’ It was therefore barred by the Statute of Limitations prescribed in the afore-recited subdivision of the act.

However, the “Rotice of Intention to File a Claim” substantially complied with the requirements of a claim as a pleading. Appellation given to said first filed paper is not conclusive, as we were told in the opinion by Heppernan, J., in Chalmers Son v. State of New York (271 App. Div. 699, affd. 297 N. Y. 690). The legal reasoning there applies with full force at bar.

Technically, we dismiss the pleading which is denominated as the ‘ ‘ claim ’ ’ because it violated the pertinent Statute of Limitations. However we grant the cross motion to the extent that the filed verified “Notice of Intention to File a Claim” shall be regarded as a verified claim filed on June 4, 1958, on condition that on or before January 31, 1961 the claimant shall file in the office of the Clerk of this court, pursuant to rule 11 of the Buies of the Court of Claims, 12 copies of the pleading with a notice stating that the filing is pursuant to the order of this court bearing today’s date. Short-form order signed.