PAGANO v. NEW YORK STATE THRUWAY AUTHORITY (1997)

In a claim to recover damages for wrongful death and personal injuries, etc., the claimants appeal from an order of the Court of Claims (Hanifin, J.), entered September 14, 1995, which denied the branch of their motion which was to dismiss certain defenses asserted in the defendant's answer and denied the branch of their motion which was for leave to file a late claim without prejudice to making a motion for that relief upon proper papers concerning the merit of their claim, and granted the defendant's cross motion to dismiss the claim.

ORDERED that the order is affirmed, without costs or disbursements.

This claim arises from a motor vehicle accident on the New York State Thruway.   For reasons which are in dispute but are not relevant to this appeal, the claimants' vehicle left the roadway and ultimately overturned in the drainage ditch.

 The failure to comply with the service requirements of Court of Claims Act § 11 results in a lack of jurisdiction which cannot be cured by application of the doctrine of equitable estoppel (see, Finnerty v. New York State Thruway Auth., 75 N.Y.2d 721, 551 N.Y.S.2d 188, 550 N.E.2d 441).   The court therefore properly denied the branch of the motion which sought to dismiss the jurisdictional defenses raised by the defendant.   Moreover, considering all of the relevant factors (see, Court of Claims Act § 10[6] ), we find no improvident exercise of discretion in the denial of the claimants' application for leave to serve a late claim without prejudice to renewal of that branch of the motion upon proper papers (see, Garvin v. State of New York, 201 A.D.2d 533, 607 N.Y.S.2d 719;  Calco v. State of New York, 165 A.D.2d 117, 565 N.Y.S.2d 880).

MEMORANDUM BY THE COURT.