New York State Court of Claims

New York State Court of Claims

ALLEN v. THE STATE OF NEW YORK, #2001-016-030, Claim No. None, Motion No. M-63061


Late claim motion in which it was asserted that claimant injured finger using defective hole punch at York College was denied.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Alan C. Marin
Claimant's attorney:
Albert A. Gaudelli, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Susan J. Pogoda, AAG
Third-party defendant's attorney:

Signature date:
April 24, 2001
New York

Official citation:

Appellate results:

See also (multicaptioned case)


This is the motion of Delores C. Allen for permission to file a late claim pursuant to §10.6 of the Court of Claims Act (the "Act"). In her proposed claim, Allen alleges that while working in the Personnel Office at York College of the City University of New York ("CUNY"), she injured her finger on a defective hole puncher she had been directed to use. Subdivision 6 of §10 of the Act enumerates six factors to be weighed in such a motion, although the six are not necessarily exhaustive, and the presence or absence of any particular one is not controlling[1]: whether (1) the delay was excusable; (2) claimant has any other remedy; (3) defendant had notice of the essential facts constituting the claim; (4) defendant had an opportunity to investigate; (5) defendant would be substantially prejudiced; and (6) the claim appears to be meritorious.

As to excuse, claimant's attorney essentially asserts that it was initially believed that the proper defendant in this case was the City of New York, and that was the entity that was initially sued. Counsel states that he did not discover until January 2001 (almost a year after the incident) that York College was a senior college of CUNY, over which this Court has jurisdiction. Misapprehension as to which governmental entity is the proper defendant does not excuse late filing. See, e.g., Matter of E.K. (Anonymous) v State of New York, 235 AD2d 540, 652 NYS2d 759 (2d Dept 1997).

As to an alternate remedy, claimant did bring a Workers' Compensation claim against her employer.[2] The remedies afforded under the Workers' Compensation Law are statutorily limited and do not compensate for pain and suffering. See Workers' Compensation Law §15. Thus, claimant would have an alternate, but arguably lesser, remedy under the Workers' Compensation Law. In any event, claimant's Workers' Compensation claim was apparently denied because she did not lose more than seven days of work. See Exhibit B to the March 13, 2001 affirmation of Susan J. Pogoda. As defendant points out, claimant also has a potential product liability action. In view of the foregoing, at best, claimant is on the cusp of compliance with this factor of the Act.

The next three factors covering notice, opportunity-to-investigate and prejudice 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). In this case, a copy of the claim against the city was served on Olga Dias, claimant's supervisor at York College, on May 5, 2000, less than three months after the incident. See ¶4 of the January 19, 2001 affirmation of Albert A. Gaudelli (the "Gaudelli Aff."). Shortly thereafter, on June 13, 2000, a letter was sent to the supervisor asking that the hole puncher be retained. See Exhibit C to the Gaudelli Aff. On balance, claimant satisfies these three factors of the Act.

The final factor to be considered is merit. In this case, the sole descriptive matter contained in the proposed claim is "While working at York College in the Personnel Office, under the supervision of Olga Dias, claimant was directed to use a defective hole puncher to punch holes in certain records and while doing so, [the] tip of [her] middle finger of [her] right hand was cut off." Claimant has submitted no affidavit as to the incident, nor is it otherwise elaborated as to how the accident occurred, what was defective about the puncher, or how defendant was negligent. Nor has any information such as medical records been provided as to claimant's injury. In fact, the only elaboration on the incident is hardly helpful to claimant's case: a Workers' Compensation Document submitted with defendant's opposition papers as Exhibit A contains a statement by claimant that "[w]hile removing paper off of hole punch (which does not work property - requiring such removal) - apparently my hand slipped [and] top puncher came down on finger." Matter of Santana v NYS Thruway Authority, 92 Misc 2d 1, 11, 399 NYS2d 395, 402-03 (Ct Cl 1977) sets forth a standard for the appearance of merit: (i) the claim "must not be patently groundless, frivolous or legally defective" and (ii) upon consideration of the entire record, including the proposed claim and any exhibits or affidavits, "there is reasonable cause to believe that a valid cause of action exists." In view of the bare bones proposed claim, the lack of an affidavit from claimant and the exhibit described above, I am constrained to find that the claim does not meet this standard. Moreover, I note that the proposed claim does not appear to describe the incident with sufficient particularity pursuant to §11 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). "Conclusory or general allegations . . . that fail to adduce the manner in which the claimant was injured and how the State was negligent do not meet [the] requirements of [§11 of the Act.]" Heisler v State of New York, 78 AD2d 767, 767-68, 433 NYS2d 646, 648 (4th Dept 1980).

In view of the foregoing, having reviewed the parties' submissions[3], IT IS ORDERED that motion no. M-63061 is denied.

April 24, 2001
New York, New York

Judge of the Court of Claims

[1] See Bay Terrace Coop. Section IV, Inc. v New York State Employees' Retirement Sys., Policemen's and Firemen'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).
  1. [2]Although she was working at York College at the time of the incident, claimant's employer was the Jamaica Service Program for Older Adults Inc.
  2. [3]The following were reviewed: claimant's notice of motion with affirmation in support, proposed claim and Exhibits A-D; and defendant's affirmation in opposition with Exhibits A-C.