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
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'
, IT IS ORDERED that motion no.
M-63683 be denied.