New York State Court of Claims

New York State Court of Claims

LANZETTA v. THE STATE OF NEW YORK, #2001-027-572, Claim No. 102560, Motion Nos. M-61983, CM-62205


Defendant's Motion to Dismiss and Cross Motion for Late Claim filing upon CUNY.

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):
Claimant's attorney:
Raymond J. Pezzoli, Esq.
Defendant's attorney:
Hon. Eliot Spitzer, Attorney GeneralBy: Susan J. Pogoda, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
June 26, 2001
New York

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were reviewed by the Court on these motions: Defendant's Notice of Motion, Defendant's Affirmation and annexed Exhibits A and B, Defendant's Affirmation in Opposition to Claimants' Cross-Motion and annexed Exhibit A, Claimants' Notice of Cross-Motion, Claimants' Affirmation in Opposition and in Support of Cross-Motion and annexed Exhibits A-H.

Defendant, the State of New York, has brought this motion seeking an order pursuant to Civil Practice Law and Rules(CPLR) R 3211 and Court of Claims Act(CCA) §§ 10 and 11 dismissing the claim. Claimants, Hope Lanzetta and John Donnellan, have cross-moved for permission to file a late "Notice of Claim" against the City University of New York(CUNY) pursuant to CCA §§ 10 and 11 and Education Law §6224(4).

The underlying claim concerns an incident which occurred on July 6, 1998, wherein claimant, Hope Lanzetta, was injured when a box of books fell onto her person while she was in an office of the College of Staten Island. It is conceded that a Notice of Intention

was served on the Attorney General's Office on October 1, 1998 and that a Claim was filed with the Court of Claims on June 5, 2000.

At the outset the Court notes that it is well settled that the State of New York and the senior colleges of CUNY are two separate entities which must be served separately. Brinkley v City University of New York, 92 AD2d 805 (1st Dept. 1983). Claimants have not proffered a valid claim against defendant in either their "Notice of Claim" or their Claim. Furthermore, service upon the Attorney General, CUNY's attorney, does not constitute service upon CUNY. Id at 806. It is clear from the submissions herein that claimants have not effectuated valid service upon CUNY. Timely service upon the appropriate entity is a predicate to the Court of Claims having jurisdiction to hear the claim. Calderazzo v State of New York, 74 AD2d 954 (3rd Dept. 1980). Where the claimant fails to serve the appropriate entity with either a Notice of Intention or a Claim within 90 days after the accrual of the cause of action, as is the case here, the Court of Claims must dismiss the claim for lack of jurisdiction. Matter of Welch v State of New York, 71 AD2d 494 (4th Dept. 1979). Thus the defendant's motion must be granted and the Claim dismissed.

Turning to claimants' cross-motion, the Court notes that CCA § 10(6) does not authorize the filing of a late "Notice of Claim." Additionally, in an action based upon the acts or omissions of one of the CUNY senior colleges the only proper defendant is CUNY. Therefore, the Court will treat this application as one for permission to file a late Claim against CUNY.[1]

The Court of Claims Act §10(6) grants upon the Court the discretion to allow the filing of a late claim provided the Statute of Limitations as set forth in article 2 of the CPLR has not elapsed. In determining whether relief to file a late claim should be granted, the Court must take into consideration the factors set forth in §10(6) of the Court of Claims Act. Bay Terrace Cooperative Section IV, Inc. v New York State Employees' Retirement System Policemen's and Firemen's Retirement System, 55 NY2d 979 (1982). The factors are not necessarily exhaustive, nor is the presence or absence of any particular one controlling. Id. They are whether (1) the defendant had notice of the essential facts constituting the claim; (2) the 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.

Law office failure does not constitute a reasonable excuse for the late filing of a Claim. Powell v State of New York, 187 AD2d 848, 589 NYS2d 950 (3rd Dept. 1992); Sevillia v State of New York, 91 AD2d 792, 458 NYS2d 69 (3rd Dept. 1982). Claimants do not offer any acceptable excuse for the delay in the filing of their claim. However, the lack of an acceptable excuse, alone, is not an absolute bar to a late claim application. Matter of Carvalho v State of New York. 176 AD2d 317 (2nd Dept. 1991). A reasonable excuse for untimely filing and service is only one of several factors taken into consideration by the Court when considering whether to allow the late filing of a claim and is not by itself determinative.

In considering the closely related factors of notice, opportunity to investigate, and prejudice, the Court finds it significant that a CUNY injury report detailing the underlying occurrence was filed two days after the date of this incident. After weighing all the circumstances involved in the present action, these factors are found to be in claimants' favor.

It does not appear, at first blush, that claimants have a viable cause of action against another entity.

The most significant issue considered by the Court in an application to file a late claim is whether the claim appears meritorious. To permit the filing of a legally deficient claim would be an exercise in futility. Savino v State of New York, 199 AD2d 254 (2nd Dept. 1993). Claimants have established, for the purposes of this motion, through their Claim that, at this stage of the litigation process, their Claim appears meritorious.[2]

Therefore, for the foregoing reasons, defendant's motion to dismiss the originally filed Claim is granted. Additionally, after weighing the statutory factors set out in CCA §10(6) the Court finds it proper to grant claimants' cross-motion to file a late Claim against CUNY.

Within sixty (60) days of the date this order is filed, claimants shall file and serve their claim pursuant to the Court of Claims Act §§ 11 and 11-a.

June 26, 2001
New York, New York

Judge of the Court of Claims

[1]Defendant has properly raised an objection to the use of the language, "Notice of Claim," by claimants and has responded to this motion as if it were one seeking permission to file a late Claim.
[2]The Court is treating claimants' originally filed Claim as their proposed Claim for the purposes of this motion, however, listing CUNY as the proper party defendant.