New York State Court of Claims

New York State Court of Claims

VARGAS v. CITY UNIVERSITY OF NEW YORK, #2000-019-512, Claim No. 100326, Motion Nos. M-60917, CM-61307


This is a motion to dismiss pursuant to CPLR 3211 filed by the defendant City University of New York (hereinafter sometimes "CUNY"). Claimant opposes the dismissal motion and, in the alternative, cross-moves for permission to file a late claim pursuant to Court of Claims Act (hereinafter "CCA") 10 (6). Motion granted Claim dismissed. Cross-motion granted 60 days to file Claim

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The Court has sua sponte amended the caption to delete the State of New York and A. Derevnuk, thereby reflecting the City University of New York as the only proper defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):
Claimant's attorney:
ROBERTO CAMPOS-MARQUETTI, P.C.BY: Roberto Campos-Marquetti, Esq.
Defendant's attorney:
BY: Ellen S. Mendelson, Assistant Attorney General, of counsel
Third-party defendant's attorney:

Signature date:
April 19, 2000

Official citation:

Appellate results:

See also (multicaptioned case)


This is a motion to dismiss pursuant to CPLR 3211 filed by the defendant City University of New York (hereinafter sometimes "CUNY"). Claimant opposes the dismissal motion and, in the alternative, cross-moves for permission to file a late claim pursuant to Court of Claims Act (hereinafter "CCA") 10 (6).

The Court has considered the following papers in connection with this motion:
  1. Claim, filed May 11, 1999.
  2. Notice of Motion No. M-60917, dated December 6, 1999 and filed December 20, 1999.
  3. Affirmation of Ellen S. Mendelson, AAG, in support of motion, dated December 6, 1999, with attached exhibits.
  4. Notice of Cross-Motion No. CM-61307, dated March 6, 2000 and filed March 7, 2000.
  5. Affirmation of Roberto Campos-Marquetti, Esq., in support of cross-motion and in opposition to motion, dated February 28, 2000, with attached exhibits.
  6. Proposed Claim, dated February 7, 2000.
  7. 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 attached exhibit.
  8. Reply Affirmation of Roberto Campos-Marquetti, Esq., in support of cross-motion, dated and filed March 29, 2000, with attached exhibits.
  9. 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.[1]

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.[2] 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 late claim.

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 accrued.[3] (CPLR 214 [2]; CCA 10 [6]).

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 Auth., 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.[4] (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 allegations.[5] 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., supra, 92 Misc 2d, at 11). Claimant relies on two main sources to support her assertion of merit, namely the factual allegations contained in the proposed claim[6] 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.[7]

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 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 meritorious.

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 against Claimant.

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 DISMISSED, and

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.

April 19, 2000
Binghamton, New York

Judge of the Court of Claims

[1]The Court of Claims has exclusive jurisdiction for tort and contract claims involving the senior colleges of CUNY. (Education Law 6224[4]).
[2]The defendant preserved this question for review by raising, with particularity, said issues in its Verified Answer as the 3rd and 9th affirmative defenses.
[3]The only dates referenced by Claimant are "June 1997" at the earliest and "May 26, 1998" at the latest. Assuming, arguendo, this claim accrued, at the earliest, on June 1, 1997 this motion is still timely.
[4]Under the statutory scheme set forth in the Human Rights Law "[a] person claiming to be aggrieved by unlawful discriminatory practices may elect to seek redress in either an administrative or a judicial forum (Executive Law § 297 [9])." (Marine Midland Bank v New York State Div. of Human Rights, 75 NY2d 240, 244; Matter of Pan Amer. World Airways v New York State Human Rights Appeal Bd., 61 NY2d 542, 548 [these remedies are mutually exclusive]). As such, a claimant may elect "[t]o proceed by way of the courts rather than through the administrative body and has the absolute right to do so without requirement that she exhaust any administrative remedies." (West v Technical Aid Corp., 111 Misc 2d 23, 25). Here, there is no assertion by either party that this Claimant had previously elected the administrative route which would bar this claim.
[5]The defendant also complains there is no affidavit from someone with personal knowledge of this matter. However, Claimant ultimately filed an affidavit with her reply papers and the now dismissed claim had been verified by Claimant.
[6]Although this proposed claim is not verified by Claimant, it is similar in substance to the now dismissed claim which was verified by Claimant.
[7]The proposed claim also alleges violations of the New York City Human Rights Law 8-107(2)4. This is not the forum to litigate a local law of the City of New York. (CCA 9).