New York State Court of Claims

New York State Court of Claims

CIULLA v.CITY UNIVERSITY OF NEW YORK, #2000-014-525, , Motion No. M–61612


Application for permission to file a late claim is denied; claimant did not demonstrate that the proposed claim appears to be meritorious.

Case Information

Claimant short name:
Footnote (claimant name) :


Footnote (defendant name) :
It is clear from this application, and the Attorney General's opposition to it, that the only proper defendant is the City University of New York; the Court sua sponte amends the caption of this application to delete the State of New York as a named defendant. The Court of Claims does not have jurisdiction over Brooklyn College as an entity distinct from the City University of New York (see, Education Law §6224[4]); the Court sua sponte amends the caption of this application to delete Brooklyn College as a named defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):

Motion number(s):
Cross-motion number(s):

S. Michael Nadel
Claimant's attorney:
Marsala & NechamkusBy: Thomas S. LoBue
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Susan J. Pogoda, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
October 3, 2000
New York

Official citation:

Appellate results:

See also (multicaptioned case)


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 Exhibits annexed.

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, 981.

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 remedy.

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.

October 3, 2000
New York, New York

Judge of the Court of Claims