New York State Court of Claims

New York State Court of Claims

DRIMMER v. New York, #2000-014-502, Claim No. 99357, Motion Nos. M-60878, CM-61129


Synopsis


Failure to serve the City University of New York within 90 days of accrual of the claim requires dismissal of the claim. The claimant's application for permission is granted; while the delay was not excusable, CUNY had notice and an opportunity to investigate just after the incident occurred.

Case Information

UID:
2000-014-502
Claimant(s):
BRYAN DRIMMER
Claimant short name:
DRIMMER
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
99357
Motion number(s):
M-60878
Cross-motion number(s):
CM-61129
Judge:
S. Michael Nadel
Claimant's attorney:
Koval & KovalBy: Mark I. Koval
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Ellen S. Mendelson, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
April 5, 2000
City:
New York
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision


The following papers were read on the claimant's application for permission to file a late claim (Motion No. M-60878), and on the defendant's cross motion to dismiss the claim (Motion No. CM-61129): Notice of Motion, Affirmation in Support and Exhibits annexed; Notice of Cross Motion, Affirmation in Support and in Opposition to Claimant's Motion and Exhibits annexed; Reply Affirmation in Support of Claimant's Motion and Opposition to Defendant's Cross Motion and Exhibits annexed; (defendant's) Reply Affirmation. Filed papers: Claim, Answer.


The claim alleges that as a result of the negligence of the defendant, the claimant was injured at New Ingersoll Hall at Brooklyn College, on August 31, 1998, when an "electromagnetic bar" fell from the top of a door, striking his thumb. In his Reply Affirmation, counsel for the claimant concedes that the State of New York is improperly named as the defendant, and that it is the claimant's intention to hold the City University of New York (CUNY), not the State of New York, responsible for the conduct alleged in the claim.

It is not disputed that, although timely and properly served upon the Attorney General (Court of Claims Act §§ 10[3] and 11[a]), the claim was not served upon CUNY until December 21, 1998, more than 90 days after the accrual of the claim. This is the basis of the defendant's Fifth Affirmative Defense, upon which it has cross moved to dismiss the claim. Service of the claim beyond ninety days requires dismissal of the claim. Byrne v State of New York, 104 AD2d 782, lv denied 64 NY2d 607, Mallory v State of New York, 196 AD2d 925; see, also, Brinkley v City University of New York, 92 AD2d 805. The defendant's cross motion must, therefore, be granted; the claim is dismissed.

Claimant moves, seeking permission to file a late claim against CUNY. Since this application was filed within the relevant statute of limitation, the Court has jurisdiction to grant relief under §10(6), and has considered the factors listed therein. See, Bay Terrace Cooperative Section IV, Inc. v New York State Employees' Retirement System Policemen's and Firemen's Retirement System, 55 NY2d 979, 981.

The delay in filing the claim was not excusable; according to counsel's affirmation, the excuse is the mistaken understanding that Brooklyn College is a part of the State University of New York. E.K. v State of New York, 235 AD2d 540, 541; Sevillia v State of New York, 91 AD2d 792.

Although the Attorney General did not initially oppose the application on the basis of the statutory factors of notice, opportunity to investigate, or prejudice caused by the delay, in a Reply Affirmation it is asserted that to the extent that it is the claimant's position that an accident report prepared by the College (Exhibit A to claimant's submission), provided notice, "the accident report did not effectively notify CUNY that a claim would be filed against it, or that there was any reason to investigate the circumstances thereto." Reply Affirmation, ¶4. The pertinent entry in the accident report, prepared immediately after the accident, reads: "the Electromagnet Bar on the Door fell and hit him on his left hand, doing injury to his left thumb. He was treated at the EMS Office 021NE and transported to Community Hospital for further examination and treatment. The Electromagnet Bar was brought to the Public Safety Office, 1433 Boylan Hall."

The accident report provided CUNY with notice of the essential facts constituting the claim as well as an opportunity to investigate the circumstances underlying it. The claim itself was served upon CUNY only three weeks after the 90 day period expired. No support has been provided for the assertion that the failure to timely serve the claim or a notice of intention on CUNY has resulted in substantial prejudice to it.

The affidavit of the claimant, annexed as Exhibit E to the claimant's Reply, is sufficient to demonstrate that the claim appears to be meritorious. Contrary to the assertion of the Assistant Attorney General that the proposed claim "does not contain any description of how [CUNY] was negligent" (Reply Affirmation, ¶6), the proposed claim alleges, inter alia, that the "City University of New York was negligent in that they allowed a defective door to remain on said premises, . . ." (Proposed Claim, ¶11)

The Attorney General suggests that the claimant might have another available remedy, against the manufacturer of the door.

Having considered the relevant statutory factors, Bay Terrace, supra, the balance of factors weigh in claimant's favor. It is therefore,

ORDERED, that claimant's application for permission to file a late claim against the City University of New York is granted; claimant shall file the proposed claim in accordance with the provisions of Court of Claims Act §§ 11 and 11-a and Rule 206.5 of the Uniform Rules for the Court of Claims, and serve it, in accordance with the provisions of Court of Claims Act §11, either personally or by certified mail return receipt requested, upon the City University of New York and upon the Attorney General, within 45 days of receipt of a filed copy of this order.



April 5, 2000
New York, New York

HON. S. MICHAEL NADEL
Judge of the Court of Claims