New York State Court of Claims

New York State Court of Claims

Conry v. City University of New York, #2000-016-090, Claim No. 102655, Motion Nos. M-61969, CM-62174


Synopsis



Case Information

UID:
2000-016-090
Claimant(s):
Lloyd Conry and Anita Conry
Claimant short name:
Conry
Footnote (claimant name) :

Defendant(s):
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) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
102655
Motion number(s):
M-61969
Cross-motion number(s):
CM-62174
Judge:
Alan C. Marin
Claimant's attorney:
Raphael Weitzman, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney Generalby: Susan J. Pogoda, AAG
Third-party defendant's attorney:

Signature date:
October 24, 2000
City:
New York
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

On June 26, 2000, Lloyd Conry and his mother, Anita Conry, filed a claim for injuries

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").[1]

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 Dept 1987).


The Claim

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 claim.[2] 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 thereto.

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 infant.[3]

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 teacher/group leader:
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 controlling[4]: 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 futile.

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, exh B).

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
New York, New York

HON. ALAN C. MARIN
Judge of the Court of Claims




[1] 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.
[2] See, e.g., Schneider v State of New York, Claim No. 91422, Motion No. M-51856, Cross-Motion No. CM-52045, filed September 14, 1995 (Silverman, J.).
[3] His date of birth is September 21, 1988 (cl affirm 8/24, exh A, first page).
[4] See Bay Terrace Coop. Section IV, Inc. v New York State Employees' Retirement Sys. Policeman's and Fireman's Retirement Sys.,55 NY2d 979, 449 NYS2d 185 (1982); Scarver v State of New York, 233 AD2d 858, 649 NYS2d 280 (4th Dept 1996).