IN RE PETITION OF McHALE, 120 N.H. 450 (1980)

450 A.2d 1268

In re PETITION OF ELLEN McHALE (New Hampshire Board of Claims)

No. 79-469Supreme Court of New Hampshire Original
Decided June 18, 1980

Appeal and Error — Untimely Claims A motion for rehearing before the board of claims must be filed with the agency within twenty days after any order or decision or no appeal may be taken; Supreme Court Rule 11 procedures are not available to cure an appeal that is otherwise defective where statutory time limits have been exceeded. RSA 541:3, :4; Supreme Ct. R. 10, 11.

Hall, Morse, Gallagher Anderson, of Concord (G. Wells Anderson, by brief), for the plaintiff.

Gregory H. Smith, acting attorney general (Edward W. Stewart, Jr., assistant attorney general, by brief), for the defendant.

MEMORANDUM OPINION

This is a petition for original jurisdiction under Supreme Court Rule 11 regarding the granting of a motion to dismiss a claim pending before the State Board of Claims.

Page 451

On September 25, 1979, the plaintiff filed a notice of claim arising out of a 1978 accident. The State filed a motion to dismiss the claim based upon the petitioner’s failure to provide notice within 180 days as required by RSA 541-B:14 IV (Supp. 1979). On December 7, 1979, the Board of Claims heard and granted the motion to dismiss. On December 21, 1979, the instant petition was filed in this court and on January 8, 1980, a “motion for reconsideration” was filed with the board.

RSA 541-B:10 IV (Supp. 1979) provides that the “findings and recommendations of the board” shall “only be subject to a judicial appeal . . . in accordance with RSA 541.” We have previously held that “the legislature has designated the RSA ch. 541 appeals procedure as the proper vehicle for challenges to judgments of the board of claims.” Sousa v. State, 119 N.H. 283, 284, 401 A.2d 1067, 1068 (1979).

Under RSA 541:3 a motion for rehearing must be filed with the agency within twenty days “after any order or decision” or no appeal may be taken. RSA 541:4. Our Rule 11 procedures are not available to cure an appeal that is defective under RSA ch. 541. See Supreme Court Rule 10.

Petition dismissed.