MALKA LICHTENSTEIN, INDIVIDUALLY &C. OF ABRAHAM LICHTENSTEIN, DECEASED,
APPELLANT, v. STATE OF NEW YORK, RESPONDENT.
93 N.Y.2d 911 (1999).
3 No. 64
[99 NY Int. 0077]
99 N.Y. Int. 0078.
[99 NY Int. 0078]This opinion is uncorrected and subject to revision before publication in the New York Reports.
MEMORANDUM:
The order of the Appellate Division should be affirmed, with
costs.
Decedent sustained fatal injuries after he exited a gasstation off State Highway 17, drove into oncoming traffic, and
collided head–on with a vehicle traveling in the opposite
direction. Claimant brought this negligence action against the
State, asserting causes of action for wrongful death, personal
injuries, and loss of consortium. She did not, however, commence
the action in accordance with the requirements of Court of Claims
Act §§ 10(2) and 10(3), which prescribe the terms and conditions
for bringing such claims against the State.
Owing to claimant's failure to comply with these sections,
the Court of Claims determined that the action was never properly
commenced and therefore dismissed the action. The Appellate
Division affirmed. In addition, the Court of Claims refused to
grant claimant relief under Court of Claims Act § 10(6), which
gives the court discretionary power to allow the late filing of a
claim upon consideration of a number of factors, including the
merits of the case. The court, noting in part that decedent
drove into the oncoming traffic lane despite signs warning
against doing so, found that there was no apparent merit to
claimant's claim. That ruling, however, which was also affirmed
by the Appellate Division, is not now before us.
The appeal before us is governed by Dreger v New York State
Thruway Auth. (81 NY2d 721, 724), in which we held that
"[b]ecause suits against the State are allowed only by the
State's waiver of sovereign immunity and in derogation of the
common law, statutory requirements conditioning suit must bestrictly construed," and that, accordingly, claimants who had not
met the literal requirements of Court of Claims Act § 11 had not
properly commenced their actions.
Court of Claims Act §§ 10(2) and 10(3) contemplate that an
executor or administrator be formally appointed before commencing
an action against the State. Section 10(2) specifically mandates
that a wrongful death claim be brought "within ninety days after
the appointment of such executor or administrator." Section
10(3) deals with personal injury claims. When, as here, the
claim is a "survival" action on behalf of an intestate decedent,
the proper claimant can be only a duly appointed personal
representative in receipt of letters of administration ( see, EPTL
11–3.2; see also, EPTL 1–2.13). Claimant, who started her action
in the Court of Claims before receiving letters of
administration, did not meet the requirements of the Court of
Claims Act, and thus did not properly commence the action.
Lastly, we conclude that claimant's arguments with respect to the
application of CPLR 205(a) on this appeal are without merit.
* * * * * * * * * * * * * * * * *
Order affirmed, with costs, in a memorandum. Chief Judge Kaye
and Judges Bellacosa, Smith, Levine, Ciparick, Wesley and
Rosenblatt concur.
Decided May 11, 1999