New York State Court of Claims

New York State Court of Claims

STOK v. THE CITY UNIVERSITY OF NEW YORK, #2001-016-205, Claim No. None, Motion No. M-63806


Late claim motion was granted ; proposed claim asserted that Hunter College employee wheeled television set into claimant.

Case Information

ANNA STOK The caption has been amended to reflect that the sole proper defendant is the City University of New York
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
Third-party claimant(s):

Third-party defendant(s):

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

Alan C. Marin
Claimant's attorney:
Richard G. Monaco, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Susan J. Pogoda, AAG
Third-party defendant's attorney:

Signature date:
November 28, 2001
New York

Official citation:

Appellate results:

See also (multicaptioned case)


This is the motion of Anna Stok for permission to file a late claim pursuant to §10.6 of the Court of Claims Act (the "Act").[1] In the proposed claim, it is asserted that on April 19, 1999, a Hunter College employee wheeled a television set into claimant, a student at the college, causing her to fall. Stok asserts that she suffered a broken pelvis as a result.[2]

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.[3]

The first, second and third factors – whether the defendant had notice of the essential facts, whether the defendant had an opportunity to investigate and whether the 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, a notice of intention was properly served on June 23, 1999, approximately two months after the incident. Claimant's counsel followed with an August 18, 1999 letter to CUNY regarding the incident. In addition, a CUNY incident report was prepared the day following the accident. In view of the foregoing, I find that these three factors have been met.

As to an alternate remedy, neither party addresses the issue, however, it appears that CUNY would be the only tortfeasor. As to excuse, claimant's counsel states that CUNY was not served with the claim because of "ministerial error." 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 the appearance of merit. Supporting claimant's assertions here, the CUNY incident report in this case states that claimant "was accidentally knocked down with a TV cart being pushed by Prof Wayne Edwards . . . as [claimant] exited the women's bathroom . . ." As to claimant's injuries, included in her papers are medical records indicating that she suffered a fractured pelvis. On the whole, I find that claimant thus meets the test set forth in Matter of Santana v NYS Thruway Authority, 92 Misc 2d 1, 11, 399 NYS2d 395, 402-03 (Ct Cl 1977) 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."[4]

For the foregoing reasons, having reviewed the partes' submissions[5], IT IS ORDERED that motion no. M-63806 be granted. Within sixty (60) days of the filing of this Decision and Order, claimant shall file and serve her claim upon both the Attorney General of the State of New York and the City University of New York, and otherwise comply with §§11 and 11-a of the Court of Claims Act.

November 28, 2001
New York, New York

Judge of the Court of Claims

  1. [1]Defendant had cross-moved (CM-63902) to dismiss a claim previously filed by Stok (no. 102631) for lack of service on the City University of New York ("CUNY"). Claimant conceded that service had not been made and thus CM-63902 was granted and claim no. 102631 dismissed on the record at a hearing held on October 30, 2001.
  2. [2]Claimant attaches to her moving papers a copy of the verified claim previously filed as claim no. 102631. It will be assumed that such is Stok's proposed claim for the purposes of this motion.
  3. [3]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).
  4. [4]Defendant argues that the claim is not meritorious in that it fails to comply with §11 of the Act by inadequately describing the manner in which the incident occurred. The claim states that a CUNY employee "who was wheeling a television set down the third floor, north corridor . . . collided with the Claimant, causing her to fall down . . ." Such satisfies Heisler v State of New York, 78 AD2d 767, 433 NYS2d 646 (4th Dept 1980), in which it was stated that the claim must be specific enough so as not to mislead, deceive, or prejudice rights of the defendant.
  1. [5]The following were reviewed: claimant's notice of motion with the affidavit of Anna Stok, counsel's affirmations in support and exhibits 1-5; defendant's notice of cross-motion with affirmation in support and exhibits A-F; and claimant's reply affirmation with exhibits A-C.