Ivy v. State

Appellate Division of the Supreme Court of New York

Ivy v. State

27 A.D.3d 1190, 810 N.Y.S.2d 769

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMarch 17, 2006

DocketClaim No. 106270

StatusPublished

Cited by9 cases

This text of 27 A.D.3d 1190 (Ivy v. State) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Ivy v. State, 27 A.D.3d 1190, 810 N.Y.S.2d 769 (N.Y. Ct. App. 2006).

Pincite

Opinion

Appeal from an order of the Court of Claims (Renée Forgensi Minarik, J.), entered September 11, 2003 in a medical malpractice action. The order granted defendant’s motion to dismiss the claim.

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

Memorandum: The Court of Claims properly granted defendant’s motion seeking dismissal of the claim because the claim [1191]*1191was 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 AD2d 496, 497-498 [2001]; see Carter v State of New York, 284 AD2d 810 [2001]; Park v State of New York, 226 AD2d 153 [1996]; see generally Lyles v State of New York, 3 NY3d 396, 400-401 [2004]). Present—Gorski, J.P., Martoche, Smith, Green and Pine, JJ.

Free access — add to your briefcase to read the full text and ask questions with AI

Appeal from an order of the Court of Claims (Renée Forgensi Minarik, J.), entered September 11, 2003 in a medical malpractice action. The order granted defendant’s motion to dismiss the claim.

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

Memorandum: The Court of Claims properly granted defendant’s motion seeking dismissal of the claim because the claim [1191]*1191was 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 AD2d 496, 497-498 [2001]; see Carter v State of New York, 284 AD2d 810 [2001]; Park v State of New York, 226 AD2d 153 [1996]; see generally Lyles v State of New York, 3 NY3d 396, 400-401 [2004]). Present—Gorski, J.P., Martoche, Smith, Green and Pine, JJ.

Cite This Page — Counsel Stack

Bluebook (online)

27 A.D.3d 1190, 810 N.Y.S.2d 769, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ivy-v-state-nyappdiv-2006.

Opinion

Related

Cite This Page — Counsel Stack