Conry v. City University of New York, #2000-016-090, Claim No. 102655, Motion
Nos. M-61969, CM-62174
Lloyd Conry and Anita Conry
Footnote (claimant name)
City of New York Board of Education, Jackie Robinson Center for Physical Culture, Medgar Evers College and City University of New York
Footnote (defendant name)
Alan C. Marin
Raphael Weitzman, Esq.
Eliot Spitzer, Attorney Generalby: Susan J. Pogoda, AAG
October 24, 2000
See also (multicaptioned
On June 26, 2000, Lloyd Conry and his mother, Anita Conry, filed a claim for
caused by a ball thrown by a "teacher/Group leader" (claim, ¶32). The
incident occurred at a gym class in Public School 9, an elementary school
located in Brooklyn. Also filed at the same time was the Conrys' motion
requesting permission to file a late claim in accordance with §10.6 of the
Court of Claims Act (the "Act").
Claimants have named four defendants: "City of New York Board of Education,
Jackie Robinson Center for Physical Culture, Medgar Evers College and City
University of New York." Assuming for now that the acts or omissions in question
are those of an agent or employee of the Jackie Robinson Center for Physical
Culture which may be imputed to a senior college of the City University of New
York, viz., Medgar Evers College, then in that instance, only the City
University of New York is properly a defendant in this Court. See Education Law
§6224.4; Perry v City of New York, 126 AD2d 714, 511 NYS2d 310 (2d
The threshold issue is whether this claim satisfies the particularity
requirements of §11.b of the Act. Compliance with §11 is a
jurisdictional prerequisite to the maintenance of a claim. Cannon v State of
New York, 163 Misc 2d 623, 622 NYS2d 177 (Ct Cl 1994); Bryne v State of
New York, 104 AD2d 782, 480 NYS2d 225 (2d Dept 1984) lv denied 64
NY2d 607, 488 NYS2d 1023 (1985).
Where jurisdiction is implicated, a defendant is not required to go beyond the
four corners of the claim to ascertain information which should be provided by
The whole of the factual
information contained in the claim is as follows:
That on or about March 31, 1999, as the infant claimant was lawfully and
properly upon the Defendants aforementioned premises [Public School 9
Elementary, 80 Underhill Avenue, Brooklyn, NY], the infant claimant Lloyd Conry
was caused to sustain personal injury as a result of being struck in the hand by
a ball thrown at him by a teacher/Group leader with excessive force, which
occurrence was caused solely by the recklessness, negligence and carelessness of
the Defendants...without any negligence on the part of the claimant contributing
That by reason of the foregoing, the infant claimant was rendered sick, sore,
lame and disabled and suffered severe and disabling internal and external
injuries, together with shock to his entire nervous system. [¶¶32-34].
The §11(b) pleading requirements are intended to provide a "sufficiently
detailed description of the particulars of the claim to enable the [defendant]
to investigate and promptly ascertain the existence and extent of its
liability..." Sinski v State of New York, 265 AD2d 319, 696 NYS2d 70 (2d
Dept 1999). In this claim, there is no indication of the specific activity
involved, where on premises the incident occurred, what kind of ball struck
Lloyd and what led up to the throw; nor the basis on which the incident would be
deemed to constitute negligence. Moreover, the Conrys' claim does not inform us
what time the incident happened, which by itself may well violate §11.b.
See Heisler v State of New York, 78 AD2d 767, 433 NYS2d 646 (4th Dept
1980). In addition, the claim contains no sum of damages, but for the
consequence of such omission, see Barski v State of New York, 43 AD2d
767, 350 NYS2d 762 (3d Dept 1973).
Accordingly, IT IS ORDERED that the claim of Lloyd Conry and Anita Conry (No.
102655) be dismissed.
The Late Claim Motion
Section 10.6 of the Act authorizes the Court to grant permission for the filing
of an otherwise late claim. Motion No. M-61969 has been brought on behalf of
both Anita Conry and Lloyd Conry, but as to Lloyd, the motion is unnecessary
inasmuch as §10.5 of the Act tolls the claim of an
The motion papers are somewhat more detailed than the claim, including an
affirmation by claimants' counsel together with six pages of medical records and
two pieces of correspondence related to the Jackie Robinson Center's
relationship to Medgar Evers College. The affirmation includes the time of the
incident, 5:30 p.m and more specificity on the place, viz. the gymnasium
of P.S.9. Also supplied for the first time was the surname of the
Mr. Best used excessive force and bad judgement when he threw a ball at Claimant
Lloyd Conry, fracturing his finger. Claimant Lloyd Conry and other children in
said Gym class had warned Mr. Best that he was throwing the ball at them too
hard and fast and their complaints were ignored. Mr. Best and the school did not
provide any medical attention to ...Conry's injuries despite his complaints nor
did they inform his parents of the incident. In fact, it was not until he
returned home after the school that day, that his mother discovered what
happened to her infant child..." [cl affirm, 8/24 ¶5].
In addition, the final page of the medical records is nine lines of handwritten
notes, much of which is illegible (affirm 8/24, exh A). One thing that can be
deciphered is the phrase "of being injured during basketball game" – the
only reference to the sport that was being played and the kind of ball that
struck Lloyd. This phrase is placed within quotation marks in the records,
apparently indicating that it was a statement of Lloyd Conry's.
Subdivision 6 of §10 of the Act enumerates six factors to be weighed in a
motion for permission to file a late claim; the six are not necessarily
exhaustive, nor is the presence or absence of any particular one
: namely, whether (1) defendant
had notice of the essential facts constituting the claim; (2) defendant had an
opportunity to investigate the circumstances underlying the claim; (3) defendant
was substantially prejudiced; (4) the delay was excusable; (5) claimants have
any other remedy; and (6) the claim appears to be meritorious.
The first three factors are closely related and may be considered together.
Brewer v State of New York, 176 Misc 2d 337, 342, 672 NYS2d 650, 655 (Ct
Cl 1998). No accident report has been submitted and no proof is offered that
the Robinson Center or Medgar Evers ever received any notice. Compare that to
the circumstance of two Court of Claims cases decided in 1986: Avila v
State of New York, 131 Misc 2d 449, 500 NYS2d 626 (incident report prepared
two days after a slip and fall) and Matter of Crawford v City University of
New York, 131 Misc 2d 1013, 502 NYS2d 916 (Hunter College supervisory
officials had notice of a fall within 18 days).
All claimants proffer is the conclusory statement that: " Defendants' knew or
should have known in the normal course of business that claimant injuries
transpired as discussed above. The delay in serving the claim in no way
prejudiced the state. A report of claimant's injury must have been made by the
Jackie Robinson Center... in addition to the fact that [their] own employee
directly inflicted claimants injury" (affirm, 8/24 ¶¶13 &14).
Such is insufficient, and claimants fail to satisfy the
notice/prejudice/opportunity-to-investigate cluster of factors.
Claimants do not supply a valid excuse within the meaning of §10.6.
Unfamiliarity with the proper party to be sued or the statutory scheme governing
same will not excuse a late filing in this Court. See, e.g., Matter of
E.K. (Anonymous) v State of New York, 235 AD2d 540, 652 NYS2d 759 (2d Dept
1997). Erca v State of New York, 51 AD2d 611, 378 NYS2d 328 (3d Dept
1976), aff'd mem 42 NY2d 854, 397 NYS2d 631 (1977).
The fifth of the criteria, on the availability of an alternative remedy, is
related to the final one on merit. If the actions of the group leader at P.S. 9
are not within the jurisdiction which this Court exercises over City University
senior colleges, then the case clearly lacks merit. If so, then per Prusack
v State of New York, 117 AD2d 729, 498 NYS2d 455 (2d Dept 1986), it
would be a legally deficient claim, for which a late filing would be
Claimants submit a June 23, 2000 letter from an assistant attorney general with
an enclosed letter from City University's general counsel. The enclosure was a
formal request for representation by the attorney general in another case, in
which the Jackie Robinson Center was a named defendant. The letter notes that
the Robinson Center "only exists as part of Medgar Evers College" (cl affirm,
For its part, defendant submits two pages on the Robinson Center from a catalog
or brochure issued by Medgar Evers. The Robinson Center is described as an
"integral unit" of the School of Continuing Education and External Programs,
which is non-profit and community based, and offers after-school programs at 25
elementary, intermediate and middle schools in Brooklyn. "Many of the
administrators come from the school district and many program staff are
teachers"(Def affirm, exh B). Claimants do not explain whether Mr. Best falls
within this category.
If the actions of March 31, 1999 are those of a senior college under Education
Law §6224.4, then this Court is the exclusive forum. In view of the above,
claimants are, at best, on the cusp of satisfying the alternate remedy factor.
Finally, the claim falls short of appearing to be meritorious. The sketchy
fact pattern outlined above is insufficient to ascertain just what acts or
omissions constituted negligence. Upon consideration of the entire record,
including the exhibits and the affirmation -- no witness' affidavits, accident
reports or photographs have been presented-- there is not reasonable cause to
believe a valid cause of action lies (Matter of Santana v NYS Thruway
Authority, 92 Misc 2d 1, 11, 399 NYS2d 395, 402-03 [Ct Cl 1977]), and that
conclusion obtains without factoring in the possibility that this Court may lack
subject matter jurisdiction.
In view of the foregoing consideration of the provisions of §10.6 of the
Act, IT IS ORDERED that Motion M-61969 requesting permission to file a late
claim be denied, except with respect to claimant Lloyd Conry for whom
such motion is inapposite as a consequence of the tolling effect of §10.5
of the Act.
October 24, 2000
York, New York
HON. ALAN C. MARIN
Judge of the Court of Claims
The following papers were reviewed:
Defendants' Notice of Cross-Motion with an Affirmation in support thereof and in
opposition to claimants' motion, including Exhibits A through C; the Claim;
Claimants' Notice of Motion together with an Affirmation by Counsel and Exhibits
A through C; Note that the Claimants also filed an Affirmation filed August
24, 2000 with a somewhat different set of exhibits A - C, e.g.
, exh A
thereto, consisting of certain medical records. This second affirmation will be
denominated as "cl affirm 8/24" herein.
, Schneider v State of New
, Claim No. 91422, Motion No. M-51856, Cross-Motion No. CM-52045, filed
September 14, 1995 (Silverman, J.).
His date of birth is September 21, 1988 (cl
affirm 8/24, exh A, first page).
See Bay Terrace Coop. Section IV, Inc. v
New York State Employees' Retirement Sys. Policeman's and Fireman's
55 NY2d 979, 449 NYS2d 185 (1982); Scarver v State of New
, 233 AD2d 858, 649 NYS2d 280 (4th Dept 1996).