New York State Court of Claims

New York State Court of Claims

WEBB v. THE CITY UNIVERSITY OF NEW YORK, #2000-014-537, , Motion No. M-61753


Application for permission to file a late claim is denied.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The Court of Claims does not have jurisdiction over "The City of New York" (see, Court of Claims Act §9), nor does it have jurisdiction over "Queens College" as an entity distinct from the City University of New York (see, Education Law § 6224(4). Thus, the Court sua sponte amends the caption of this application to delete those named defendants.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):

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

S. Michael Nadel
Claimant's attorney:
Richard E. Schrier
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Susan J. Pogoda, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
November 28, 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, Affidavit and Exhibits annexed; Affirmation in Opposition and Exhibits annexed[1]; Reply Affirmation, Affidavit of Merit, and Exhibits annexed

The proposed claim alleges that the claimant was injured as a result of the negligence of the defendant. The claimant's submission appears to allege that the negligence consisted of the failure of the defendant to fully open a gate at Queens College, one of the senior colleges of the City University of New York, as a result of which a truck operated by someone for whom the defendant is not responsible, became caught on the gate. In the course of attempting to separate the truck from the gate, the claimant, who at the time was employed by the owner of the truck, was struck by the gate.

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 for permission to file a late claim 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.

Upon the circumstances presented by the claimant, the delay in filing the claim was not excusable. His counsel's affidavit explains that an action against the defendant was mistakenly commenced in Supreme Court.

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 are therefore 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. It appears from the claimant's submission that the defendant was served with a summons and complaint in the Supreme Court action within a few days after the claimant reached the age of 18, and within 6 months after the incident.

The claimant has not demonstrated that the proposed claim appears to be meritorious. The proposed claim alleges, in very general terms, that the defendant was negligent. These general and conclusory allegations of negligence are insufficient to establish that the claim appears to be meritorious. Witko v State of New York, 212 AD2d 889, 891; Calco v State of New York, 165 AD2d 117, 119, lv denied 78 NY2d 852; Simpson v State of New York, 96 AD2d 646; Sevillia v State of New York, 91 AD2d 792. Neither the testimony of the claimant at a hearing pursuant to General Municipal Law §50-h, nor the claimant's "Affidavit of Merit" demonstrates that the claim appears to be meritorious.

The failure to demonstrate that a proposed claim appears to be meritorious 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.

It appears that the claimant has another available remedy, against Waste Management, Corp., which is named in the body of the proposed claim.

Having considered the relevant statutory factors, Bay Terrace, supra, the application is denied.

November 28, 2000
New York, New York

Judge of the Court of Claims

[1]The Court has not considered a videotape offered by the defendant. It appears from the affidavit of David Galloway, Executive Director, Queens College Student Services Corporation, that the videotape was offered to contradict an allegation in the Affidavit of claimant's counsel which was withdrawn in the Reply Affirmation.