New York State Court of Claims

New York State Court of Claims

SOBEL v. THE CITY UNIVERSITY OF NEW YORK, #2001-016-059, Claim No. NONE, Motion No. M-63299


Case Information

JASON SOBEL and RONNI SOBEL The caption has been amended to reflect that the sole proper defendant is the City University of New York. Furthermore, inasmuch as the claim of Ronni Sobel is derivative of her husband's, except where the context clearly indicates otherwise, references herein will be to Jason Sobel and to claimant in the singular.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The caption has been amended to reflect that the sole proper defendant is the City University of New York. Furthermore, inasmuch as the claim of Ronni Sobel is derivative of her husband's, except where the context clearly indicates otherwise, references herein will be to Jason Sobel and to claimant in the singular.
Third-party claimant(s):

Third-party defendant(s):

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

Claimant's attorney:
Alan S. Ripka, P.C.By: Brian J. Isaac, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Susan J. Pogoda, AAG
Third-party defendant's attorney:

Signature date:
July 24, 2001
New York

Official citation:

Appellate results:

See also (multicaptioned case)


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 controlling:[1] 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 other remedy.

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 bases.[2] 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. The 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 do so.

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:[3]

[T]here is no legal relationship between the League and the State which exonerates the State for its own negligence or alters the State's liability to being purely derivative. As such, it cannot be concluded that the pending negligence action against the League is another available remedy of claimant against the State of New York. (Cl. reply, p.11)

* * *

In view of the foregoing, having reviewed the submissions of the parties[4], IT IS ORDERED that motion no. M-63299 be denied.

July 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).
[2] Paragraphs 21 and 48 of exhibit A to claimant's Affirmation, the Supreme Court Complaint, state that Sobel was on the college's field for "a considerable amount of time prior" to his fall; but those paragraphs also state that he was walking, and nowhere does the complaint refer to a fall at third base.
[3] See, for example, One Hour Auto Glass, Inc. v State of New York, Ct. Cl. filed 10/15/99, Marin, J. (unreported, mot. no. M-59698).
[4] The papers reviewed were: claimants' Notice of Motion with Affirmation in Support containing exhibits A-G (exhibit C is the Proposed Claim); defendant's Affirmation in Opposition containing exhibits A through F; and claimants' Reply.