
    Marie Boland, Appellant, v. State of New York, Respondent.
    (Motion No. M-11936.)
    Argued March 14, 1972;
    decided May 5, 1972.
    
      
      Eugene Murphy and Nancy E. Le Blanc for appellant.
    
      Louis J. Lefkowitz, Attorney-General (Jeremiah Jochnowitz and Ruth Kessler Toch of counsel), for respondent.
    
      
      Jeremiah S. Gutman for New York Civil Liberties Union, amicus curiae.
    
   Breitel, J.

Claimant, a recent patient of a State mental institution by involuntary commitment, seeks permission to file a late claim against the State. The claim is for wrongful commitment (false imprisonment) and negligent medical treatment. The claim was not filed within 90 days of accrual as ordinarily required by subdivision 3 of section 10 of the Court of Claims Act. The claim may be filed, however, under a different subdivision of the statute, if claimant may take advantage of the two-year period provided for claimants under disability when the claim accrued, or may, as a matter of discretion, be allowed to file a late notice of claim, even in the absence of disability (subd: 5).

Claimant was committed in November, 1965, and was conditionally released on convalescent status in June, 1966. Finally, in June, 1967, she was discharged from supervision. - Less than two years after final discharge, in May, 1969, claimant made a motion for permission to file a late claim with an attached proposed notice of claim. Claimant now urges -that she was subject to a legal disability, mental impairment, when her claim accrued and that upon final discharge in June, 1967 she had two years to file as of right (N. Y. Const., art. Ill, § 19; Court of Claims Act, § 10, subd. 5). Alternatively she seeks permission to file a late claim.

Section 19 of article III of the State Constitution provides: “No claim against the state shall be audited, allowed or paid which, as between citizens of the state, would be barred by lapse of time. But if the claimant shall be under legal disability the claim may be presented within two years after such disability is removed.”

Subdivision 5 of section 10 of the Court of Claims Act provides both for late filing with permission of the court and for filing as of right within two years in case of legal disability, repeating the language of the Constitution: “A claimant who fails to file a claim or notice of intention, as provided in the foregoing subdivisions, within the time limited therein for filing the notice of intention, may, nevertheless, in the discretion of the court, be permitted to file such claim at any time within two years after the accrual thereof, or in the case of a claim for wrongful death within two years after the decedent’s death. The application for such permission shall be made upon motion based upon, affidavits showing a reasonable excuse for the failure to file the notice of intention and that the state or its appropriate department had, prior to the expiration of the time limited for the filing of the notice of intention, actual knowledge of the essential facts constituting the claim. The application may be made returnable at any regular or special session of the court and may be heard and determined by any judge thereof. The claim proposed to be filed, containing all of the information set forth in section eleven of this act, shall accompany such application. No such application shall be granted if the court shall find that the state has been substantially prejudiced by the failure of the claimant to file such notice of intention within the time limited therefor. But if the claimant shall be under legal disability, the claim may be presented within two years after such disability is removed.”

The Appellate Division, in reversing the Court of Claims which had allowed the claim to be filed, held the two-year period inapplicable because the claim did not accrue until final discharge in 1967, and at that instant, her legal disability had ceased. Permission to file a late claim was denied for failure to show reasonable excuse. It is concluded that claimant is entitled to file as of right, both by virtue of the Constitution and the statute. Were the issue of discretion reached, it would be an abuse of discretion to deny the claimant relief.

The motion court found that claimant’s disability continued during hospitalization and convalescent care, terminating with discharge in June, 1967 (61 Misc 2d 802, 805-806). The Appellate Division apparently concurred, but disagreed as to whether the claim accrued during disability. The court held that since the claim did not become ‘ ‘ complete ’ ’ or accrue until discharge, when simultaneously the disability ceased, ‘ claimant was [then] not under a legal disability ” (35 A D 2d 855). In so concluding the court relied on cases stating that Statutes of Limitation do not begin to run until the continuing wrong has ceased or until the wrong has become “ complete ” (see Borgia v. City of New York, 12 N Y 2d 151; Bill v. County of Westchester, 4 A D 2d 779, stating that for malpractice and false imprisonment the claim does not become complete until the course of treatment or detention ceases; see, also, Waterman v. State of Neio York, 19 A D 2d 264, affd. sub nom. Williams v. State of New York, 14 N Y 2d 793; Moltion v. State of New York, 193 Misc. 850, affd. 277 App. Div. 835, affd. 302 N. Y. 177, 185; Morrison & Quinn, Inc. v. State of New York, 204 App. Div. 623; Dufel v. State of New York, 198 App. Div. 97, all holding that a continuing wrong does not become complete for the purpose of time limitations, and thus the statute does not begin to run, until the last damage is incurred or ascertained).

The fact that for Statute of Limitation purposes a continuing wrong does not start the running of the statute until the wrong is “complete” does not mean that before “completeness” there is no claim. Of course there is. On common principles the wrong against claimant, if there has been a wrong, was initiated at the inception of the detention. The “ complete wrong ” rule was created and applied to save a just claim and to recognize that ordinarily, but not invariably, one sues when one’s damages are ascertained to be complete and calculable. Thus, the accrual of claims under the Court of Claims Act has received various kinds of treatment, artificial but effective to save claims or to permit early assertion (see 19 Carmody-Wait, 2d, Actions in the Court of Claims, § 120.17, at pp. 746-747). The “ continuing wrong ’ ’ rule to allow delayed claims should not be turned around to defeat a claim which, for all one knows at this prepleading stage, is just.

Assuming the present claim accrued prior to discharge, which in theory and practice must be the case, thé claim accrued while claimant was under a legal disability. Thus, the two-year period is applicable and the claim allowable as of right. The Court of Claims, as factfinder, determined that claimant’s mental impairment continued until June, 1967. The Appellate Division made no contrary finding. The State, for obvious reasons, is not urging that one involuntarily committed and under continuing treatment for schizophrenia was not under legal disability. Relevantly, the Carmody-Wait treatise states: “ The state having presented no proof to the contrary, the claimant’s confinement on a commitment to a state hospital by order of the Supreme Court must be accepted as evidence of legal disability during the period of his confinement. That is to say, the fact of commitment to a state hospital, which is based upon the character of the finding required by statute for admission as a patient, is sufficient to overcome the presumption of a claimant’s competency.” (19 Carmody-Wait, 2d, op. cit., supra, p. 748.) The cases have so held (see, e.g., Williamsen v. State of New York, 207 Misc. 281 [Sylvester, J.]; Danna v. State of New York, 207 Misc. 505, 507 [Major, J.]).

Given the disability,-the two-year rule mandated by Constitution and statute, has been consistently applied. In the Carmody-Wait treatise it has been restated in this manner: “ A person under a legal disability at the time of the accrual of his claim against the state is not required to file a notice of intention, but is compelled only to present his claim within 2 years after the disability is removed. In such a case, permission to file a claim is not necessary to validate a filing made within the 2-year period after the removal of the disability.” (19 Carmody-Wait, 2d, op. cit., supra, pp. 747-748 ; Accord: Weber v. State of New York, 267 App. Div. 325, 326-327; Emanuele v. State of New York, 43 Misc 2d 135, 137; Canizio v. State of New York, 8 Misc 2d 943, 945; Danna v. State of New York, 207 Misc. 505, supra; Williamsen v. State of New York, 207 Misc. 281, supra; Nastasi v. State of New York, 185 Misc. 91, 93.)

In summary, the claim accrued while claimant was under the supervision of the State hospital. Since claimant was under a continuing legal disability during that period, she is entitled to serve her claim within two years of final discharge as of right. Perforce, it would be an abuse of discretion to deny her leave to file the claim. To have the short Statute of Limitation of 90 days run from the date of plaintiff’s discharge, on the theory that instanter on discharge both the cause of action accrued and the disability ended, is not reasonable. Moreover, the claim accrues to one in a class of persons unfortunate and helpless, suffering from a condition that does not begin or end by the clock.

Accordingly, the order of the Appellate Division should be reversed, with costs, and the motion granted.

Scileppi, J. (dissenting).

Claims asserted against the State by statutory prescription, under ordinary circumstances, are to be filed within 90 days of their accrual (Court of Claims Act, § 10, subd. 3). Where the claim is not filed within the statutory period, a delinquent claimant may seek relief Jby way of a motion to file ‘ ‘ a late claim ’ ’, addressed to the sound discretion of the court (Court of Claims Act, § 10, subd. 5); or, if disabled by reason of some recognized legal impediment — infancy, detention in a State institution, or insanity, even absent an adjudication of incompetency or the appointment of a committee (Hammer v. Rosen, 7 N Y 2d 376) —may proceed as of right, and need only file the claim within two years after the disability is removed for it to be timely (N. Y. Const., art. Ill, § 19; Court of Claims Act, § 10, subd. 5). The timeliness of the claim, if controverted, would then be tested via a motion pursuant to CPLR 3211 (subd. [a]) (Court of Claims Act, § 10, subd. 5; see Emanuele v. State of New York, 43 Misc 2d 135, 137; Gomillion v. State of New York, 51 Misc 2d 952, 953; Canizio v. State of New York, 8 Misc 2d 943, 945).

Recognizably, in an action for illegal detention, the wrong if any, is initiated by the first detaining act. Even so, we deal here not with an accrual of a cause of action, but with a 1 ‘ claim asserted against the state ”. The terms are not semantical equivalents and the question of the wrong’s inception is, for all intents and purposes, extraneous to our inquiry.

In point of fact, the Court of Claims Act does not provide for the running of the Statute of Limitations until the claim shall have accrued and the jurisdiction of the Court of Claims is framed also in terms of “ claims ” asserted against the State (Edlux Constr. Corp. v. State of New York, 252 App. Div. 373, 375, affd. 277 N. Y. 635; Court of Claims Act, § 9). The statute does not contain the words cause of action and though a cause of action would have accrued as between private parties with the first wrongful act, the sovereign can only be sued by its consent, and under the terms of the act by which it consents to be sued. Surely, a cause of action has arisen, but where it is prosecuted against the State, it is not cognizable in a court of law until the claim has accrued (Edlux Constr. Corp. v. State of New York, 252 App. Div. 373, 375, affd. 277 N. Y. 635, supra; Parmenter v. State of New York, 135 N. Y. 154; Sanford v. Sanford, 62 N. Y. 553). The claim, as one for a continuing wrong, is said by statute not to accrue until the detention ceases and the extent of damages can be fairly ascertained (Waterman v. State of New York, 19 A D 2d 264, 266; Moltion v. State of New York, 193 Misc. 850, affd. 277 App Div. 835, affd. sub nom. Taylor v. State of New York, 302 N. Y. 177, 185; Edlux Constr. Corp. v. State of New York, 252 App. Div. 373, affd. 277 N. Y. 635, supra; Morrison & Quinn, Inc., v. State of New York, 204 App. Div. 623, 627; Dufel v. State of New York, 198 App. Div. 97).

In other words, a claim accrues against the State only when it matures, and “ claim accrued ” connotes only that damages have accrued. In the final analysis, the “ complete wrong ” rule simply, and quite neutrally, defines the point in time at which a claim is first enforceable and necessarily excludes early assertion of the claim (Edlux Constr. Corp. v. State of New York, 252 App. Div. 373, 375, affd. 277 N. Y. 635, supra; see, also, Parmenter v. State of New York, 135 N. Y. 154, supra; Sanford v. Sanford, 62 N. Y. 553, supra). Borgia v. City of New York (12 N Y 2d 151) and those eases tolling the Statute of Limitations for continuing wrongs for purposes of salvaging just claims are similarly inapposite (cf. Hammer v. Rosen, 7 N Y 2d 376, 379, supra). The distinction, though elemental, is alluded to by the majority, then abruptly abandoned along with the plethora of authority which has established it as law.

On the facts before us then, the claim could only have accrued on final discharge from convalescent care in June, 1967, not before. Yet, to trigger the disability provisions of the statute, claimant must further establish that she was, in fact, incapacitated at the time the claim accrued, so as to impede, at least presumptively, compliance with the mandatory filing requirements. Initially, by her supporting affidavit, the disability was alleged to be the product of her detention through June, 1967 and to that fact alone. The Court of Claims, instead, and without any supportive evidence, attributed the disability to claimant’s mental condition prior to her discharge from convalescent care, also June, 1967 (61 Misc 2d 802, 805-806). Satisfied that the claim accrued in June, 1967 the Appellate Division, quite properly, reversed on the law and the facts (35 AD 2d 855).

The fact that the claimant, as a diagnosed schizophrenic, was placed on out-patient care does not of itself point to a continued disability. Release, though conditioned on continued treatment, prima facie, attests to a belief on the part of the attending physicians that the patient is capable of civilized conduct and gives rise to a coincidental presumption of self-sufficiency. Short of a proper evidentiary showing that her condition was, in fact, otherwise, claimant must be assumed to have been lucid enough to attend to her own affairs. Efforts at assigning a presumption of legal disability to the order of commitment which by its own force and effect expired in May, 1966, over three years before the motion to file a late notice of claim, are, of course, equally futile. In sum, the record is devoid of any evidence which would support a finding of mental impairment subsequent to June, 1966.

Even assuming that the claimant continued under a disability until June, 1967 and taking that date as the sole operative date. the claim is still untimely. The disability provision of section 10, displacing the ordinary 90-day filing requirement, applies only in cases of recognized impediments, coincident in terms of inception and duration with the statutory period prescribed for filing claims against the State. Since there is no proof that the claimant was under a legal disability during the statutory period, she had only 90 days within which to file a notice of claim. Were the rule otherwise, claims asserted against the State for illegal detention would always gain the benefit of a two-year disability provision — a result obviously not contemplated by the statute.

Claimant, of course, is free, and, in fact, has moved to file a late notice of claim. The criteria which guide the motion court in its exercise of discretion are detailed under section 10 (subd. 5) of the Court of Claims Act and should be granted only upon a showing of “ reasonable excuse ” as that term has come to be defined. On the basis of this record, there is no reason to conclude that the Appellate Division abused its discretion in denying claimant’s motion. Undoubtedly, vestiges of prior impairment survive even release from convalescent care. Nevertheless, it is still incumbent upon the movant to establish, by evidentiary fact, some nexus between her prior debilitated state and her failure to comply with the filing requirements; and though serious physical injury or immobilization may be sufficient, the lack of sufficient strength or stamina clearly falls short of such a showing. The reasons advanced here for the delay evidence merely that claimant was not aware of the filing requirements and could not obtain counsel to aid in the prosecution of her claim. While one can sympathize with her plight, it cannot be said that the delay was justified (see Landry v. State of New York, 1 A D 2d 934, affd. 2 N Y 2d 927; cf. Davis v. State of New York, 28 A D 2d 609; 500 Eighth Ave. Assoc. v. State of New York, 30 A D 2d 1010).

In holding as it does, the majority ignores precedent and the clear intent of the statute. The order appealed from should be affirmed.

Chief Judge Full and Judges Burke, Jasen and Gibson concur with Judge Breitel ; Judge Scileppi dissents and votes to affirm in a separate opinion in which Judge Bergan concurs.

Order reversed, with costs, and case remitted to the Court of Claims for further proceedings in accordance with the opinion herein. 
      
      The treatise states that “ [wjhere wrongful acts are continuous, a new cause of action accrues each day upon the commission of each new wrong, and such continuous wrongful acts are treated as separate rights of action for the purpose of determining the time within which a claim or notice of intention to file a claim must be filed” (19 Carmody-Wait, 2d, loc. cit., supra).
      
     