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
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.
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 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
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."
For the foregoing reasons, having reviewed the partes'
, 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.