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