The following papers were read on claimant's application for permission to file
a late claim pursuant to Court of Claims Act §10(6): Notice of Motion,
Affirmation in Support and Exhibits annexed; Affirmation in Opposition and
The claimant seeks permission to file a late claim against the City University
of New York, in connection with injuries sustained, on October 6, 1999, when he
fell during an intramural football game at Brooklyn College, one of the senior
colleges of the City University. See, Education Law §6224(4). He
alleges that the fall was caused when he tripped on a raised seam on the
artificial playing field on which the game was being played.
Although the 90-day period to serve and file a claim or to serve a notice of
intention has lapsed, Court of Claims Act §10(3), this application was
filed within the relevant statute of limitation so 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,
The delay in filing the claim was not excusable. According to counsel's
affirmation, a Notice of Claim was filed against the City of New York, based on
the mistaken belief that it was the proper entity. See, e.g., Matter of E.K.
v State of New York, 235 AD2d 540, 541, lv to app den 89 NY2d 815;
Sevillia v State of New York, 91 AD2d 792.
The defendant does not oppose this application on the basis of the statutory
factors of notice, opportunity to investigate, or prejudice caused by the delay.
Those factors can, therefore, be presumed to weigh in the claimant's favor.
See, Calzada v State of New York, 121 AD2d 988; Cole v State of New
York, 64 AD2d 1023, 1024.
The claimant has not demonstrated that the proposed claim appears to be
meritorious. In particular, the application refers to a written incident report
which was prepared by the defendant at the time, a copy of which is annexed (as
Exhibit D) to the defendant's opposition. While the claimant, in the instant
application, attributes his fall to the alleged defect in the surface of the
playing field, the incident report describes the incident as follows: "While
playing intramural football Robert Ciulla collided with an opposing player and
‘knocked knees.'" There is no reference in the report, which was signed
by the claimant, of any defect in the playing field.
Moreover, the claimant's application fails to demonstrate that the defendant
either created or had notice, actual or constructive, of the allegedly dangerous
condition which caused his injuries. See, e.g., Curran v Fresh Meadows
Country Club, 251 AD2d 531.
Although it is asserted by the Assistant Attorney General "upon information and
belief" that the "Dormitory of the State of New York" [sic] is a party against
whom the claimant would have a remedy, in the absence of more specific
information, it does not appear that the claimant has any other available
Having considered the relevant statutory factors, Bay Terrace, supra,
the application is denied, principally due to the failure to demonstrate that
the claim appears meritorious, which weighs heavily against granting permission
to file a late claim. McCarthy v New York State Canal Corporation, 244
AD2d 57, lv denied, 92 NY2d 815; Klingler v State of New York, 213
AD2d 378; Savino v State of New York, 199 AD2d 254; Prusack v State of
New York, 117 AD2d 729.