Opinion
CA 03-02530.
March 17, 2006.
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.
WILLIE IVY, CLAIMANT-APPELLANT PRO SE.
ELIOT SPITZER, ATTORNEY GENERAL, ALBANY (MICHAEL S. BUSKUS OF COUNSEL), FOR DEFENDANT-RESPONDENT.
Before: Gorski, J.P., Martoche, Smith, Green and Pine, JJ.
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 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 AD2d 496, 497-498; see Carter v. State of New York, 284 AD2d 810; Park v. State of New York, 226 AD2d 153; see generally Lyles v. State of New York, 3 NY3d 396, 400-401).