
    Timothy B. Kelly, Jr., Appellant, v State of New York, Respondent.
    (Claim No. 60060.)
    Argued October 18,1978;
    decided November 28, 1978
    
      APPEARANCES OF COUNSEL
    
      Richard A. Kerner for appellant.
    
      Louis J. Lefkowitz, Attorney-General (Jeremiah Jochnowitz and Ruth Kessler Toch of counsel), for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, on the opinion by Mr. Justice Harry D. Goldman at the Appellate Division (57 AD2d 320). We do not reach the question as to whether the Appellate Division was correct in retroactively applying the amendment to the Court of Claims Act pertaining to late filings, inasmuch as the State has not appealed (see Fuoco v State of New York, 64 AD2d 1030).

Concur: Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Cooke.  