Opinion
January 14, 1971
Appeal from the Court of Claims.
Present — Del Vecchio, J.P., Marsh, Witmer and Moule, JJ.
Order unanimously reversed, without costs, and motion denied. Memorandum: From October 31, 1967 until her death on January 3, 1968 decedent was a patient at the Upstate Medical Center of the State University of New York. During that period she was allegedly administered an anesthetic through the negligence of the State's employees which resulted in serious illness and death. In January, 1968 claimant and others in decedent's family met with the anesthesiologist and informed him that they felt the administration of the anesthesia had caused or contributed to the illness and death. On March 11, 1968 claimant consulted an attorney in the firm which had previously been engaged to handle the estate of decedent and informed the attorney that the illness and death were caused by negligent diagnosis, care and treatment at the hospital. A detailed statement of all the facts and circumstances surrounding the claim was taken from claimant by the attorney. The attorney states that "through inadvertence the papers in connection with the above claim were put in the estate file", and that as a result no claim or notice of intention was filed within the time required by subdivision 2 of section 10 CTC of the Court of Claims Act. This application for leave to file a late claim was not made until 21 months from accrual and 19 months from the time the facts of the claim were detailed to counsel for the purpose of making a claim. The application was opposed on the ground that no reasonable excuse for failure to file within the 90-day statutory period has been produced and that leave to file a late claim under subdivision 5 of section 10 CTC of the Court of Claims Act should not be granted. The only excuse offered in the moving papers is the inadvertence of claimant's attorney in misplacing the statement concerning decedent's treatment and death and his consequent failure to file timely claim. Such inadvertence however does not constitute a reasonable excuse for failure to file. ( 500 Eighth Ave. Associates v. State of New York, 30 A.D.2d 1010; Fenimore v. State of New York, 28 A.D.2d 626; Schroeder v. State of New York, 252 App. Div. 16, affd. 276 N.Y. 627.) "The question of timeliness of filing is jurisdictional" and "nonprejudice [to the State] does not permit a waiver of the necessary prerequisites." ( Crane v. State of New York, 29 A.D.2d 1001, 1002.) In Dimovitch v. State of New York ( 33 A.D.2d 146) and Kozak v. State of New York ( 35 A.D.2d 909) we held that the requirements of section 10 CTC of the Court of Claims Act must be strictly construed. (See, also, Landry v. State of New York, 1 A.D.2d 934, affd. 2 N.Y.2d 927; Buckles v. State of New York, 221 N.Y. 418.)