Opinion
February 10, 1971
Appeal from a judgment, entered December 19, 1967, upon a decision of the Court of Claims, dismissing the claim for lack of jurisdiction by reason of the operation of the Statute of Limitations in the Court of Claims Act. Appellant filed a claim on September 6, 1960 alleging that on or about the 2d day of May, 1960 the State negligently installed pile drivers into its land. It is alleged that the damage to claimant's buildings and property will be "continuous and progressive" including that caused by the dislocation of the soil beneath its premises and the weakening of its foundations. The Court of Claims dismissed the claim as being barred by the Statute of Limitations in the Court of Claims Act. Subdivision 3 of section 10 CTC of the Court of Claims Act provides that "A claim to recover damages for injuries to property * * * caused by the tort of an * * * employee of the state * * * shall be filed within ninety days after the accrual of such claim". Respondent contends that accrual of a claim within the meaning of section 10 is synonymous with accrual of a cause of action and that the filing of appellant's claim more than 90 days after the accrual of its cause of action on May 2, was untimely. We disagree. "`The expression "claim accrued" is not identical with the expression "cause of action accrued." The claim accrues when it matures, and the words "claim accrued" have the same meaning as "damages accrued."' ( Dufel v. State of New York, 198 App. Div. 97, 102; Edlux Constr. Corp. v. State of New York, 252 App. Div. 373, 374, affd. 277 N.Y. 635)." ( Waterman v. State of New York, 19 A.D.2d 264, 266.) Nor is there merit in respondent's argument that the rule of the above cases is limited to trespass claims and inapplicable to tort claims grounded in negligence. In Taylor v. State of New York ( 302 N.Y. 177) a claim for damages occasioned by negligence and filed more than four months after the accrual of the cause of action was upheld. The Court of Appeals ruled that "as to claims like these, the ninety days does not start to run until the extent of the damage can be ascertained" ( Taylor v. State of New York, supra, p. 185). Similar results have obtained in cases where no element of continuing wrong existed ( Waterman v. State of New York, supra). Thus, where a continuing injury or other circumstance prevents an evaluation of damages at the time of the occurrence of the wrong, the time for filing a claim does not begin to run until such an evaluation can be made. Appellant claims that it was not in a position to ascertain the extent of its damages by reason of said negligence until after June 13, 1960 when it received a letter from its engineer. No evidence, however, exists in the record to support this contention. Appellant attempted to produce testimony at the trial establishing the date it ascertained its damages but was precluded from so doing by the court upon objection by respondent. Accordingly, a hearing must be held at which appellant should be afforded an opportunity to establish the date upon which its damages became ascertainable. Appellant's claim if filed within 90 days from such date, must be deemed timely. Judgment reversed, on the law, and matter remitted to the Court of Claims for further proceedings not inconsistent herewith, without costs. Reynolds, J.P., Staley, Jr., Greenblott, Cooke and Sweeney, JJ., concur.