New York State Court of Claims

New York State Court of Claims

OPARAJI v. CITY UNIVERSITY OF NEW YORK, #2000-019-510, Claim No. NONE, Motion No. M-61212


Synopsis



Case Information

UID:
2000-019-510
Claimant(s):
MAURICE OPARAJI AND ADA OPARAJI
Claimant short name:
OPARAJI
Footnote (claimant name) :

Defendant(s):
CITY UNIVERSITY OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
NONE
Motion number(s):
M-61212
Cross-motion number(s):

Judge:
FERRIS D. LEBOUS
Claimant's attorney:
McCARTHY, SMALL & ASSOCIATES, P.C.BY: JOSEPH SCARGLATO, ESQ., of counsel
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERALBY: HEALY & BAILLIE, LLP
Third-party defendant's attorney:

Signature date:
April 6, 2000
City:
Binghamton
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimants' have moved for "an Order of leave for an enlargement of time to file a Verified Claim". The Court has not received any papers by or on behalf of the defendant City University of New York (hereinafter "CUNY").[1]


The Court has considered the following papers in connection with this motion:
  1. Substitution of Attorney, filed August 24, 1999.
  2. ORDER, Ct Cl., November 12, 1999, Lebous, J., Claim No. None, Motion No. M-60133.
  3. Notice of Motion No. M-61212, dated January 27, 2000 and filed February 14, 2000.
  4. Affirmation of Joseph Scarglato, Esq., in support of motion, dated January 27, 2000, with attached exhibits.
  5. Proposed Verified Claim, dated December 3, 1999.
  6. Affidavit of Clare Lopez, in support of motion, sworn to January 26, 2000.
  7. Affidavit of Harry Schulberg, in support of motion, sworn to January 27, 2000.
This Court previously granted these Claimants permission to file and serve a late claim pursuant to CCA 10 (6). (Oparaji v City University of New York, Ct Cl., November 12, 1999, Lebous, J., Claim No. None, Motion No. M-60133 [hereinafter "Order"]). Claimant Maurice Oparaji, a student at Queens College, was allegedly attacked by a security guard, Eton Brooks, while attempting to park his vehicle on campus on October 8, 1998.[2] The original 10 (6) motion contained two proposed causes of action (one for assault and battery and the other for negligent hiring, supervision and training) and was filed on August 10, 1999. Thus, the motion was timely for both proposed causes of action even though each carried different limitation periods, one and three years, respectively. The 10 (6) motion was granted with respect to the assault and battery cause of action, but denied without prejudice on the negligent hiring, supervision and training cause of action. More specifically, said Order directed, in pertinent part, the following:
IT IS ORDERED that Motion No. M-60133 for permission to permit

the late filing and service on the assault and battery cause of action is

GRANTED. Movant shall file a claim for assault and battery and

serve a copy of the claim upon both the attorney general and CUNY

within sixty (60) days from the date of filing of this Order in the

Chief Clerk's Office of this Court
.

(Id. at 9; emphasis added). This Order was filed in the Office of the Clerk on November 12, 1999, so Claimant had until January 11, 2000 to comply with its terms.[3] On February 14, 2000, Claimant filed this instant motion because he did not file a claim for assault and battery within the specified 60 day time period.[4] Counsel avers his office delivered the claim to American Clerical Services (hereinafter "American") on December 17, 1999, together with a routing slip containing the address for the Office of the Clerk and instructions for filing same. Counsel states he began to suspect something was amiss about one month later after not receiving an answer "within thirty days".[5] In any event, a representative of American admits the claim was never filed as instructed. (Affidavit of Harry Schulberg, ¶ 4).


To recapitulate, the original 10 (6) motion was timely filed, even though the Order was not issued until after the underlying statute of limitations for the assault and battery cause of action expired.[6] Such timing is acceptable since it is well-settled that a claim is deemed interposed upon the making of a 10 (6) motion by its inclusion as part of a late claim motion which is subsequently granted. (Shimmerlik v City Univ. of N.Y., 142 Misc 2d 118, 122). For the same reason, the fact the then allowed claim was to be filed and served after the limitation period expired was of no moment. (Id.). Here, the question presented is whether this Court can now extend the deadline contained in its prior Order, despite the expiration of both the limitation period and the time period set forth in the 10 (6) motion. As discussed below, this Court answers that question in the affirmative.


In this Court's view, the fact Claimant missed the Court's own deadline by approximately one month is not fatal since the original timely 10 (6) motion satisfied the purpose of the statute of limitations.[7] As one of my learned colleagues, the Hon. Leonard Silverman, has observed "[o]nce an attorney has satisfied the statute by acting within the applicable time limitation and the defendant has been alerted to the pendency of an action, the purpose of the statute of limitations has been met." (Holmes v State of New York, Ct Cl., October 28, 1988, Silverman, J., Claim No. 74926, Motion No. 39257, p 4). Moreover, important to this Court's exercise of its discretion in this matter is the fact Claimant's omission was one of filing, rather than service.[8] As such, the defendant has not come forward with an argument of prejudice resulting from the omission.[9] In sum, the defendant will not be prejudiced if an extension is granted under these circumstances.


Consequently, the Court will amend its own prior Order as follows:
IT IS ORDERED that Motion No. M-61212 for permission to

permit the late filing and service on the assault and battery cause of action is GRANTED. Claimant shall file a claim for assault and battery and

serve a copy of the claim upon both the attorney general and CUNY

on or before July 11, 2000
.

So there is no misunderstanding, Claimant is to effect service again on both the attorney general and CUNY since the Court has some misgivings about the sufficiency of the affidavit of personal service. Towards that end, counsel should insure that the new affidavits of personal service comply in all respects with CPLR 306 (b). Moreover, Claimants are instructed to remove from the claim any allegations relative to negligence and/or negligent hiring, supervision and training since this Court's prior Order only authorized the filing of a claim containing a cause of action for assault and battery.


Accordingly, for the reasons stated above, it is ordered that Motion No. M-61212 is GRANTED upon the terms indicated hereinabove.


April 6, 2000
Binghamton, New York

HON. FERRIS D. LEBOUS
Judge of the Court of Claims




[1]An affidavit of service indicates these motion papers were served on the law firm which filed a Substitution of Attorney form on behalf of CUNY and the State of New York.

[2]For ease of reference, "Claimant" will refer to Maurice Oparaji since the claim of Ada Oparaji is derivative in nature.

[3]By way of comparison, in situations where a 10 (6) motion has been granted and where no time limit is specified in the order, courts have held a claimant then has a reasonable time to commence the action and that six months is reasonable. (Rydeberg v State of New York, 108 Misc 2d 362).

[4]Counsel asserts the claim was personally served on both CUNY and the State on December 17, 1999. However, the affidavit of service annexed to Claimant's papers does not include, among other things, the name or description of the person served as required by CPLR 306 (b).

[5]The State actually has 40 days to submit an answer pursuant to the Uniform Rules of the Court of Claims (22 NYCRR) § 206.7 (a).

[6]This discussion pertains only to the allowed claim for assault and battery, since Claimants have until October 8, 2001 to file another 10 (6) motion with respect to the proposed claim for negligent hiring, supervision and training.

[7]The one month delay is calculated between the expiration of the 60 day time period (January 11, 2000) and the filing of the instant motion (February 14, 2000). This is not to say, however, that a longer delay would have been well-received.

[8]Defendant would have responded to the copy allegedly served on December 17, 1999.

[9]Defendant did not submit any papers in opposition, perhaps in realization of the merit of Claimant's motion.