New York State Court of Claims

New York State Court of Claims

DOBRIN v. THE CITY UNIVERSITY OF NEW YORK, #2001-016-202, Claim No. None, Motion No. M-63683


Late claim motion 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:
Subin Associates, LLPBy: Brian J. Isaac, Esq. of Pollack, Pollack, Isaac & De Cicco
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Susan J. Pogoda, AAG
Third-party defendant's attorney:

Signature date:
January 7, 2002
New York

Official citation:

Appellate results:

See also (multicaptioned case)


This is the motion of Jared Dobrin for permission to file a late claim pursuant to §10.6 of the Court of Claims Act (the "Act"). In his proposed claim, Dobrin asserts that on October 8, 1998, he was injured on the running track at Brooklyn College when he encountered a "sudden vertical drop discontinuity 3 ½ inches below the track surface, causing claimant to sustain a sudden twisting torque shattering a section of his leg and causing a severe injury." In determining whether to grant this motion, six factors enumerated in the Act must be considered: whether (1) defendant had notice of the essential facts constituting the claim; (2) defendant had an opportunity to investigate the circumstances underlying the claim; (3) the defendant was substantially prejudiced; (4) the claimant has any other available remedy; (5) the delay was excusable and (6) the claim appears to be meritorious. The factors are not necessarily exhaustive, nor is the presence or absence of any particular factor controlling.[1]

The first, second and third factors – whether defendant had notice of the essential facts, whether defendant had an opportunity to investigate and whether defendant would be prejudiced by the granting of this motion are intertwined and may be considered together. See Brewer v State of New York, 176 Misc 2d 337, 342, 672 NYS2d 650, 655 (Ct Cl 1998). In this case, defendant was served on December 18, 1998 with a notice of intention containing the time, place and nature of the claim along with the items of damage or injury. This occurred a little more than two months after the October 8, 1998 incident – and during the period in which a claim itself, had it been served and filed instead of a notice of intention being served, would have been timely. On balance, claimant satisfies these three factors.

As to an alternate remedy, it appears undisputed that claimant's sole venue lies in this Court. As to excuse, claimant's counsel asserts that he inadvertently failed to serve CUNY with a claim. This is not a sufficient excuse for the purposes of the Act. See, e.g., Nyberg v State of New York, 154 Misc 2d 199, 585 NYS2d 147 (Ct Cl 1992)

The final factor to be considered is merit. In this case, claimant has submitted the affidavit of an engineer who states that the 3 ½ inch "drop-down" alleged in the proposed claim constitutes a defective condition. However, this is based on an assumption that claimant tripped on the "drop-down." In a CUNY Department of Physical Education "Report of Injury or Illness," claimant's soccer partner states that he passed the ball to claimant who "stepped on it awkwardly and fell." Moreover, the Maimonides Medical Center record from the day of the incident, which indicates that the information was taken from claimant, states that he "twisted his ankle stepping onto soccer ball today . . ." See exhibits A and C to the August 8, 2001 affirmation of Susan J. Pogoda. Claimant argues that the accident report and medical record are inadmissible since they are not sworn or certified, respectively, citing a number of cases which involve motions for summary judgment. See, for example, Perez v Bronx Cab Corp., 251 AD2d 157, 674 NYS2d 373 (1st Dept 1998). But the standard for merit on a late claim motion in this Court has been enunciated in Matter of Santana v NYS Thruway Authority, 92 Misc 2d 1, 11, 399 NYS2d 395, 402-03 (Ct Cl 1977), which claimant here does not satisfy: (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."

For the foregoing reasons, having reviewed the parties' submissions[2], IT IS ORDERED that motion no. M-63683 be denied.

January 7, 2002
New York, New York

Judge of the Court of Claims

  1. [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. [2]The following were reviewed: claimant's notice of motion with affirmation in support and exhibits A-I; defendant's affirmation in opposition with exhibits A-D; and claimant's reply affirmation.