Jason Sobel, by this motion which is opposed by the defendant, seeks permission
to file a late claim for an injury he suffered while playing softball at the
City College of the City University of New York. Sobel broke his ankle when he
tripped and fell at third base on May 2, 2000 at about 7:30 in the evening at
the Goldman athletic complex on the college's campus in upper Manhattan.
Claimant was playing on a team in a softball league that was not affiliated with
City College, or otherwise with the University.
Section 10.6 of the Court of Claims Act (the "Act") enumerates six factors to
be considered in deciding a late claim motion, although the six are not
necessarily exhaustive, and the presence or absence of any particular one is not
namely, whether (i) the
defendant City University had notice of the essential facts constituting the
claim; (ii) defendant had an opportunity to investigate; (iii) defendant would
be substantially prejudiced; (iv) the delay in filing with this Court is
excusable; (v) the claim appears to be meritorious; and (vi) claimant has any
The first three factors, covering notice, prejudice and opportunity to
investigate, are closely related and may generally be considered together.
Brewer v State of New York, 176 Misc 2d 337, 342, 672 NYS2d 650, 655 (Ct Cl
1998). An incident report (cl affirm, exh D) was prepared within an hour by the
Public Safety Service of the City University, notice at least as sufficient as
that supplied in Avila v State of New York, 131 Misc 2d 449, 500 NYS2d
626 (Ct Cl 1986) and in Matter of Crawford v City University of New York,
131 Misc 2d 1013, 502 NYS2d 916 (Ct Cl 1986). In addition, the individual who
was in charge of the Goldman facility witnessed claimant's trip and fall (def
affirm, exh A). Finally, defendant does not challenge claimant on these three
factors. The notice, prejudice, opportunity-to-investigate set of criteria are
thus satisfied by the claimant.
As for the need to resort to the late claim route, claimant's attorney in the
Affirmation of Support states that: "Due to a misunderstanding, a notice of
claim was filed with the Comptroller of the City of New York on or about July
25, 2000...Upon learning that the City of New York had no involvement in this
action, your affirmant agreed to discontinue the action in the Supreme Court
[which was also brought there against the City University] with the
understanding that plaintiff would seek permission to file a late notice of
claim in the Court of Claims" (unnumbered second page). Such an explanation
does not support compliance with item (iv) of §10.6. Misapprehension as to
the proper party or lack of familiarity with Court of Claims jurisdiction
(senior colleges of the City University can only be sued for tort in this Court)
does not constitute an excuse within the meaning of the Act. See Matter of
E.K. v State of New York, 235 AD2d 540, 652 NYS2d 759 (2d Dept 1997), lv
denied 89 NY2d 815, 659 NYS2d 856 (1997).
In order that a claim appear meritorious for the purposes of §10.6, there
must be, upon consideration of the entire record (including exhibits and
affidavits), "reasonable cause to believe that a valid cause of action exists."
Matter of Santana v NYS Thruway Authority, 92 Misc 2d 1, 11, 399 NYS2d
395, 403 (Ct Cl 1977). On the facts we have, this standard is not met.
Claimant was running to third base during a softball game and tripped and fell.
Isaac said that she "witnessed claimant running from first base and trip over
the third base bag" (def affirm, exh A, ¶2). Claimant described it a
little differently: "As I ran across third base, the base moved, causing me to
fall" (cl affirm, exh F). The softball field is simply some painted lines
within the running track at the Goldman facility (cl's affirm, the photographs
in exh G). This infield area is artificial turf, commonly known as astroturf,
and the bases are placed on top of this synthetic surface.
It is unnecessary to reach claimant's contention, made via an engineer's
affidavit, to the effect that bases must be affixed to a playing surface, but if
such cannot be done because of the nature of that surface, then they should have
been painted onto the astroturf. Nor will I reach defendant's argument that the
bases were supplied by the outside league, and the league chose which playing
fields it would use (def affirm, exh C). More to the point, and definitive for
our purposes, is that Mr. Sobel was well aware of the way the bases were set out
on the field. Within the extensive body of case law covering athletic field
accidents, there is no precedential underpinning to reasonably suggest that a
valid cause of action obtains here.
As a general proposition, "by engaging in a sport or recreational activity, a
participant consents to those commonly appreciated risks which are inherent in
and arise out of the nature of the sport generally and flow from such
participation." Morgan v State of New York, 90 NY2d 471, 484, 662 NYS2d
421, 426 (1997). Such clearly encompasses "risks associated with the
construction of the playing field, and any open and obvious conditions on it..."
Peters v City of New York, 269 AD 2d 581, 703 NYS2d 923 (2d Dept 2000).
Peters, while playing football, had tripped over a seam in the astroturf surface
on the field.
Running the bases is an integral part of a softball game, and the condition of
the field and the bases was open and obvious to Sobel. See Swan v Town of
Grand Island, 234 AD2d 934, 652 NYS2d 166 (4th Dept 1996). The
Fourth Department observed that the injured player need not foresee "the exact
manner in which his or her injury occurred, so long as he or she is aware of the
potential for injury of the mechanism from which the injury results." 234 AD2d
at 935, 652 NYS2d at 168. For that matter, recovery has been denied to a
softball player who tripped on a protruding in-ground sprinkler, because such
sprinklers are commonly found in softball fields and the "plaintiff was aware of
such sprinklers on other fields." Bruno v Town of Hempstead, 248 AD2d
576, 577, 670 NYS2d 864, 865 (2d Dept 1998).
Claimant makes no effort to show that he was unaware of the nature of the
surface of the field and the placement of the
Sobel does not, for example, suggest
that he was on the Goldman field for the first time that May 2, or if so, the
game had just begun. Note that there is extant material indicating that the
softball league was well under way. See defendant's exhibit C, which references
a start to the season in the second week of April; although such document was
for the 2001 season, it was in any event unchallenged by claimant.
kinds of facts needed to use a player's inexperience to trump the open and
obvious principle can be very strong indeed. In Taylor v Massapequa
International Little League
, 261 AD2d 396, 689 NYS2d 523 (2d Dept 1999),
plaintiff was a 10-year old who had never slid into a base, was part of a Little
League team that had been told that players would be called out if they did not
slide, and the team's coach had apparently never instructed his charges how to
As for the final factor of §10.6: claimant does have another available
remedy. An action on his behalf is pending in Supreme Court, Queens County
(Isaac affirm, unnumbered sixth page). Claimant's theory is not apposite for
purposes of §10.6 of the Act: