Claim, filed May 11, 1999.
Notice of Motion No. M-60917, dated December 6, 1999 and filed December 20,
Affirmation of Ellen S. Mendelson, AAG, in support of motion, dated December 6,
1999, with attached exhibits.
Notice of Cross-Motion No. CM-61307, dated March 6, 2000 and filed March 7,
Affirmation of Roberto Campos-Marquetti, Esq., in support of cross-motion and
in opposition to motion, dated February 28, 2000, with attached exhibits.
Proposed Claim, dated February 7, 2000.
Reply Affirmation of Ellen S. Mendelson, AAG, in support of motion and in
opposition to cross-motion, dated March 15, 2000 and filed March 20, 2000, with
Reply Affirmation of Roberto Campos-Marquetti, Esq., in support of
cross-motion, dated and filed March 29, 2000, with attached exhibits.
Affidavit of Abecia Vargas, in support of cross-motion, dated March 27, 2000
and sworn to March 28, 2000.
Claimant alleges she was discriminated against by facility members while
enrolled as a nursing student at Herbert H. Lehman College due to her national
origin in the summer of 1997 and spring 1998.
I. CUNY's Motion to Dismiss
CUNY contends Claimant failed to serve a notice of intention or file and serve
a claim as required by CCA 10 and 11.
Claimant personally served a Notice of Intention on the attorney general on
August 24, 1998, but admittedly served CUNY by regular mail. The Claim itself
was personally served on the attorney general and filed in the Office of the
Clerk on May 10, 1999 and May 11, 1999, respectively. However, Claimant
concedes she never served the Claim on CUNY. It is a fundamental principle of
practice in the Court of Claims that the filing and service requirements in the
CCA are jurisdictional in nature and must be strictly construed. (Finnerty v
New York State Thruway Auth
., 75 NY2d 721, 722-723). Moreover, it is
well-settled these requirements are equally applicable to CUNY which must be
served with process in its own right. (Brinkley v City Univ. of N. Y.,
92 AD2d 805). In view of the foregoing, this Court lacks subject matter
jurisdiction over this Claim and CUNY's motion should be granted and Claim No.
100326 dismissed; and CUNY's remaining issues need not be reached. Claimant may
not be without a remedy, however, since she cross-moved for permission to file a
II. Claimant's Cross-Motion for Permission to Late File
As a threshold issue, this Court has jurisdiction to review and determine this
motion since it was filed within three years from the date this claim
(CPLR 214 ; CCA 10 ).
The factors a Court must consider in determining a properly framed CCA 10 (6)
motion are whether: the delay in filing the claim was excusable; CUNY had notice
of the essential facts constituting the claim; CUNY had an opportunity to
investigate the circumstances underlying the claim; the claim appears to be
meritorious; the failure to file or serve upon the attorney general and CUNY a
timely claim or to serve upon the attorney general and CUNY a notice of
intention resulted in substantial prejudice to the defendant; and whether there
is any other available remedy.
The most decisive component in determining a motion under CCA 10 (6) is whether
the proposed claim appears to be meritorious, since it would be futile to permit
a meritless claim to proceed. (Matter of Santana v New York State Thruway
, 92 Misc 2d 1, 10). Claimant must establish the proposed claim is not
patently groundless, frivolous, or legally defective and that there is
reasonable cause to believe that a valid claim exists. (Id.
Initially, the Court notes that both the Supreme Court and the Court of Claims
have jurisdiction to hear and determine a claim against the State for money
damages under the Human Rights Law.
(Koerner v State of New York
, 62 NY2d 442; see also
, Taylor v
State of New York
, 160 Misc 2d 120, 126-127).
CUNY's primary argument is that the proposed claim contains conclusory
After a review of this record
including the proposed claim, Claimant's affidavit, and exhibits, this Court
disagrees. (Matter of Santana v New York State Thruway Auth.
, 92 Misc 2d, at 11). Claimant relies on two main sources to
support her assertion of merit, namely the factual allegations contained in the
and Claimant's reply affidavit,
as well as the instructor's individualized improvement plan for Claimant.
Claimant asserts she enrolled in the Lehman College nursing program in 1996 and
was an "above average" nursing student her first year. Claimant avers she
enrolled in a course known as "Nursing 303" in June 1997 which was taught by
Professor A. Derevnuk. During this time Claimant states Professor Derevnuk
harassed her by making "[d]erogatory comments about my Spanish accent and
continuously made unfounded criticisms about my performance as a student because
of my national origin." (Affidavit of Abecia Vargas, ¶ 7). Claimant
alleges she received a failing grade in Nursing 303 because of her national
origin. In the spring of 1998, Claimant again enrolled in Nursing 303, this
time taught by Professor M. Mansour. Again, Claimant asserts she was harassed
because of her accent and "[w]as forced to attend the English laboratory and the
nursing laboratory to practice my English by speaking English out aloud in the
presence of the laboratory instructor." (Affidavit of Abecia Vargas, ¶
12). Next, Claimant states she was accused of cheating during the final
examination and given an automatic failing grade for Nursing 303 for the second
time. As a result of failing the same course twice, Claimant was removed from
the nursing program. In addition to alleged violations of Executive Law
sections 290 (3), 296 (2) and 296 (4), the proposed claim alleges CUNY did not
follow its own policy and procedures.
The gravamen of this Claim is the purported violation of Executive Law 296 (4)
which states, in pertinent part, "[i]t shall be an unlawful discriminatory
practice for an education corporation or association...to deny the use of its
facilities to any person otherwise qualified, by reason of...national
origin." Thus, in order to succeed at trial Claimant will have to establish,
inter alia, she was an "otherwise qualified" nursing student.
(Brown v Einstein Coll. of Medicine of Yeshiva Univ., 172 AD2d 197).
Accordingly, while this motion should be examined with this ultimate standard in
mind, it must be balanced with the recognition that Claimant need not prove her
case here but merely establish the appearance of merit. (Matter of Santana v
New York State Thruway Auth., supra, 92 Misc 2d, at 11-12).
All the Court has to go on are Claimant's own factual averments. Neither the
Claimant nor the defendant submit any transcripts or other documentation to
either support or contradict Claimant's contention she was an "above average"
student (which the Court equates to an assertion she was an "otherwise
qualified" candidate). It is well-settled that "[f]acts stated in a motion for
leave to file a late claim against the State are deemed true for purpose of
motion, when not denied or contradicted in opposing affidavits." (Sessa v
State of New York, 88 Misc 2d 454, 458, affd 63 AD2d 334, affd
47 NY2d 976). Accordingly, the allegation Claimant was an "above average"
student is accepted as true for the purposes of this motion. With respect to
the instructor's improvement plan notes, although the author is unidentified,
the defendant has not submitted an affidavit from either professor disputing
their authenticity. In any event, the statements contained in those notes have
already been accepted as true as indicated hereinabove. In sum, although the
issue is a close one, the Court finds that the proposed claim appears
As for her excuse for the delay in filing the claim, Claimant points to law
office failure. However, law office failure is not a reasonable excuse.
(Sevillia v State of New York, 91 AD2d 792). As such, this factor weighs
Notice of the essential facts, opportunity to investigate and lack of
substantial prejudice comprise the next three factors and may be considered
together since they involve analogous considerations. Claimant refers to the
timely albeit improperly served Notice of Intention and the copy thereof sent to
CUNY's General Counsel as an attachment to a demand letter on September 17,
1998. The Court finds the defendant had notice and an opportunity to
investigate this matter if it had chosen to do so based on its undisputed
receipt of these two items. Furthermore, the defendant has not convinced this
Court that it would suffer substantial prejudice if the requested relief were
granted. In addition, no alternative remedy appears available to Claimant.
Consequently, these four factors weigh in Claimant's favor.
Accordingly, for the reasons stated above, it is ORDERED that the defendant's
motion to dismiss, Motion No. M-60917, is GRANTED and Claim No. 100326 is
IT IS FURTHER ORDERED, that Claimant's Cross-Motion No. CM-61307 for permission
to allow the late filing and service of a claim is GRANTED. Claimant shall file
the proposed claim and serve a copy thereof upon the attorney general and CUNY
within sixty (60) days from the date that this Order is filed in the Office of
the Clerk. The claim should be revised in accordance with this Decision and
Order including: the caption should be revised; the claim should be verified by
Claimant; and the apparent typographical errors contained in paragraph 3 (a)
regarding dates should be corrected. The service and filing of the claim shall
be in conformity with all applicable statutes and rules of the Court.