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
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
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
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