New York State Court of Claims

New York State Court of Claims

OCHEI v. THE STATE OF NEW YORK, #2000-001-038, Claim No. N/A, Motion No. M-61475


Synopsis


Claimant's motion for permission to file a late claim is granted

Case Information

UID:
2000-001-038
Claimant(s):
JOAN OCHEI
Claimant short name:
OCHEI
Footnote (claimant name) :

Defendant(s):
THE CITY UNIVERSITY OF NEW YORK (Hunter College)
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
N/A
Motion number(s):
M-61475
Cross-motion number(s):

Judge:
Susan Phillips Read
Claimant's attorney:
Anthony C. Ofodile, Esq.
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney GeneralBy: Susan J. Pogoda, Esq., Assistant Attorney General, Of Counsel
Third-party defendant's attorney:

Signature date:
August 2, 2000
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)

.
Decision

The following papers were read and considered on claimant's motion for permission to file a late claim pursuant to Court of Claims Act § 10 (6): Notice of Motion, dated April 3 and filed April 5, 2000; Memorandum of Law in Support of Anthony Ofodile, Esq., undated and filed April 5, 2000, with annexed Exhibits 1, 1A and 2; and Affirmation in Opposition of Susan J. Pogoda, Esq., AAG, dated May 12 and filed May 17, 2000, with annexed Exhibits A and B.

The proposed claim (Memorandum of Law in Support of Anthony Ofodile, Esq., undated and filed April 5, 2000, with annexed Exhibits 1, 1A and 2 ["Ofodile Mem."], Exh. 2) alleges that Hunter College ("the College"), a senior college of the City University of New York ("CUNY" or "defendant") (see Education Law § 6224 [4]) wrongfully denied claimant Joan Ochei ("claimant") admission to its nursing program in the spring of 1995. The proposed claim alleges breach of contract, negligent misrepresentation on which claimant relied, and general negligence in failing to "take reasonable steps to ascertain the veracity of factual statements . . . made to [claimant]" (id., ¶ 22).

Claimant alleges that she was admitted to the College's pre-nursing program in September 1993 with a zero grade point average ("GPA") from previous college work and "was unable to take certain science courses which would qualify her for the nursing program nor was she admitted to [the College's] nursing program" ( Ofodile Mem., Exh. 2, ¶ 8); however, she was assured "that after finishing the required programs and accumulating the required credits, because her admission was based on a Zero GPA, her consideration for admission to defendant's nursing program would only be based on the courses and credits accumulated at Hunter College" (id., ¶ 10) and "if she met the 2.5 minimum GPA required for admission to . . . [the] Nursing Program, she would be considered for admission and/or admitted to [the College's] nursing program" (id., ¶ 11). According to claimant, she completed the specified courses and achieved the requisite 2.5 GPA based on courses taken at the college; however, she was denied admission to the nursing program in the spring of 1995 because, she contends, the College reneged on its promises of September 1993 and considered her application based on total GPA, not just her GPA at the College (id., ¶¶ 12-15). Claimant subsequently filed two claims against defendant in connection with events allegedly occurring in the spring of 1995 and arising from claimant's attendance at the College; both were dismissed: (1) Claim No. 93800, which sought damages for personal injuries allegedly resulting from an assault taking place on April 10, 1995, was dismissed as untimely because claimant did not serve either a notice of intention or a claim on the Attorney-General within ninety days of the claim's accrual (Ochei v City Univ. of N.Y. [Hunter College], Ct Cl, unreported decision filed July 1, 1998, Read, J., Claim No. 93800, Motion No. M-57153); and (2) Claim No. 95970, which contained allegations of both negligence and breach of contract virtually identical to those set forth in this proposed claim, was similarly dismissed for lack of timely service on the Attorney-General (Ochei v City Univ. of N.Y. [Hunter College], Ct Cl, unreported decision filed July 26, 1999, Read, P. J., Claim No. 95970, Motion No. M-59589). In opposition to defendant's motion to dismiss Claim No. 95970, claimant requested permission to file a late claim in her memorandum of law rather than by motion on notice accompanied by a proposed claim; therefore, the Court dismissed this claim without prejudice to a subsequent application for permission to file a late claim for breach of contract pursuant to Court of Claims Act § 10 (6) and the Court's rules.

Thus, defense counsel first argues that the second and third causes of action in the proposed claim (negligent misrepresentation and common law negligence) are not viable because the Court dismissed Claim No. 95970 without prejudice to a subsequent application for permission to file a late claim for breach of contract only (Affirmation in Opposition of Susan J. Pogoda, Esq., AAG, dated May 12 and filed May 17, 2000 ["Pogoda Aff."], ¶ 5). In fact, claimant's proposed negligence causes of action are not amenable to a motion for permission to file a late claim because the statute of limitations applicable to like causes of action against private citizens expired no later than the spring of 1998 (Muscat v State of New York, 103 Misc 2d 589 [court powerless to grant a Court of Claims Act § 10 [6] application for permission to file a late claim once the comparable statute of limitations under article 2 of the CPLR has expired]).

Defense counsel also contends that the cause of action for breach of contract is fatally defective because the proposed claim does not state an exact date of accrual and, thus, does not comply with the pleading requirements of Court of Claims Act § 11 (b). The proposed claim does not, in fact, state an exact date of accrual. The ultimate question, however, is whether this purported deficiency prevents the Court's further consideration of this motion.

First, the proposed claim recites that claimant began classes at the College in September 1993 (Ofodile Mem., Exh. 2, ¶ 7); spent two years taking courses at the College (id., ¶ 12); and filed a notice of claim with the Comptroller of the City of New York and CUNY's General Counsel on June 12, 1995, a date "within ninety days of the breach of contract claimed herein" (id., ¶ 6). Furthermore, the notice of claim served on CUNY and officials of the City of New York and later transmitted to the Department of Law (Ofodile Mem., Exh. 1A) expressly stated that both the assault and breach of contract causes of action arose on or about April 10, 1995. Defendant has thus not been prejudiced in any way by claimant's failure to state the "time when" the proposed claim accrued more exactly than no earlier than ninety days before June 12, 1995.

In determining claimant's motion for permission to file an untimely claim, the Court must consider, among other relevant factors, the six factors set forth in subdivision 6 of section 10 of the Court of Claims Act: 1) whether the delay in filing the claim was excusable; 2) whether defendant had notice of the essential facts constituting the claim; 3) whether defendant had an opportunity to investigate the circumstances underlying the claim; 4) whether the claim appears to be meritorious; 5) whether the failure to file or serve a timely claim or serve a timely notice of intention resulted in substantial prejudice to defendant; and 6) whether the claimant has another available remedy. The Court in the exercise of its discretion balances these factors, and, as a general rule, the presence or absence of any one factor is not dispositive (Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's and Firemen's Retirement Sys., 55 NY2d 979).

With respect to the first factor, claimant attributes the delay in properly instituting an action in the Court of Claims to her counsel's reliance on the June 12, 1995 notice of claim to provide proper and timely notice to CUNY. As a technical matter, this argument is wanting because the notice of claim was not, in fact, served on the Attorney-General, which was the basis for the Court's dismissal of Claim No. 93800. On a more practical level, claimant has submitted the Affirmation of Akin Ayorinde, dated June 19, 1999 (see, Ofodile Mem., Exh. 1), which provides some, although not sufficient, explanation for the delay.

According to Mr. Ayorinde, CUNY's General Counsel informed him in August 1995 that the notice of claim had been forwarded to the Department of Law and assigned to Frank Wennick, Esq., AAG;[*] he spoke with Mr. Wennick on September 5, 1995; and Mr. Wennick indicated a willingness to discuss settlement once the action was commenced. While it was not incumbent on Mr. Wennick to educate Mr. Ayorinde in the practice requirements of the Court of Claims, Mr. Ayorinde's conversations with CUNY's General Counsel and Mr. Wennick may have reinforced his misperception that the defendant had received proper and timely notice and that all he had to do to commence the action was to file and serve the claim itself. Nonetheless, claimant failed to comply with statutory requirements in a timely fashion because of what is, in essence, law office failure, an unacceptable reason
(Erca v State of New York, 51 AD2d 611, affd 42 NY2d 854; Sevillia v State of New York, 91 AD2d 792; Donovan v New York State Teachers' Retirement System, 87 AD2d 664
). Thus, this factor weighs against granting claimant's motion.

The fact that the notice of claim was apparently forwarded to the Department of Law within a few months of the claim's accrual does, however, serve to establish that CUNY had reasonably prompt notice of the underlying facts and claimant's intention to pursue litigation. Consequently, defendant's opportunity to investigate the underlying facts giving rise to the claim was either unaffected or minimally affected by claimant's failure to serve a timely notice of intention or claim on the Attorney-General, and prejudice to defendant is therefore either minimal or nonexistent. The second, third and fifth factors thus weigh in favor of granting the motion. Because claimant does not appear to have any remedy other than an action against CUNY, the sixth factor also weighs in favor of granting the motion.

With respect to the fourth factor--whether the claim appears meritorious--a claimant need only establish that the proposed claim is not patently groundless, frivolous, or legally defective and that there is reasonable cause to believe that a valid cause of action exists (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1). For purposes of section 10 (6) analysis, the Court finds that claimant's proposed cause of action for breach of contract meets these very minimal requirements.

Based on the foregoing, the Court concludes that the statutory factors on balance favor claimant and therefore grants claimant's motion for permission to file a late claim identical to the proposed claim submitted in support of this motion (Ofodile Aff., Exh. 2) except that claimant shall (1) delete Hunter College from the claim's caption (see, 2641 Concourse Co. v City Univ. of N.Y., 137 Misc 2d 802, affd 147 AD2d 379); (2) delete the second and third causes of action for negligence (see, Muscat v State of New York, 103 Misc 2d 589, supra); and (3) specify an exact date of accrual. The Court further directs claimant to file and serve her claim, amended as directed and designated a claim, within thirty (30) days after this order is filed and in conformity with the requirements of Court of Claims Act §§ 10 and 11 and 11-a.

August 2, 2000
Albany, New York

HON. SUSAN PHILLIPS READ
Judge of the Court of Claims




[*]
The Court takes judicial notice that at the time in question Mr. Wennick was employed as an Assistant Attorney-General in the Department of Law's New York City office.