IVY v. STATE 106270

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Supreme Court, Appellate Division, Fourth Department, New York.

Willie IVY, Claimant-Appellant, v. STATE of New York, Defendant-Respondent.  (Claim No. 106270.)

Decided: March 17, 2006

PRESENT:  GORSKI, J.P., MARTOCHE, SMITH, GREEN, AND PINE, JJ. Willie Ivy, Claimant-Appellant Pro Se. Eliot Spitzer, Attorney General, Albany (Michael S. Buskus of Counsel), for Defendant-Respondent.

 The Court of Claims properly granted defendant's motion seeking dismissal of the claim because the claim was not filed and served nor was a notice of intention to file a claim served upon the Attorney General within 90 days after the accrual of the claim as required by Court of Claims Act § 10(3).   Although claimant was entitled to apply for permission to file a late claim before the statute of limitations expired (see § 10 [6] ), he did not do so.   The failure to file and serve a claim or to serve a notice of intention to file a claim upon the Attorney General within the statutorily prescribed period “is a jurisdictional defect compelling the dismissal of the claim” (Welch v. State of New York, 286 A.D.2d 496, 497-498, 729 N.Y.S.2d 527;  see Carter v. State of New York, 284 A.D.2d 810, 727 N.Y.S.2d 520;  Park v. State of New York, 226 A.D.2d 153, 640 N.Y.S.2d 100;  see generally Lyles v. State of New York, 3 N.Y.3d 396, 400-401, 787 N.Y.S.2d 216, 820 N.E.2d 860).

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed without costs.

MEMORANDUM: