The claim of Gabriella Davalos arises from her alleged slip and fall at Hunter
College on September 13, 2001. This is claimant's motion for a default judgment
against Hunter College and for an order striking the answer of the City
University of New York ("CUNY") and the State. Defendant cross-moves to dismiss
on the grounds that for the purposes of §11 of the Court of Claims Act (the
"Act"), the claim does not adequately describe the manner or location of the
There is no dispute that an answer was filed and served on behalf of the State
and CUNY. Claimant seeks a default judgment because there was no answer filed
and served by an entity entitled Hunter College. First, it must be noted that
the State should not have been named in this case. CUNY and the State are
separate and distinct legal entities and the State is not a proper defendant in
claims based on the actions of CUNY. See, e.g., Perry v City of New
York, 126 AD2d 714, 511 NYS2d 310, 311 (2d Dept 1987), citing, inter
alia, Education Law §6203. As to Hunter College, in claims arising at
senior colleges of CUNY, the proper defendant is CUNY, not the college itself.
See, e.g., Bicjan v Hunter College of the City University of New
York, 116 Misc 2d 978, 979, 457 NYS2d 387, 388 (Ct Cl 1982). Accordingly,
claimant is not entitled to a default judgment against Hunter College.
As to defendant's specificity arguments, section 11 of the Act provides in
relevant part that "[t]he claim shall state the time when and place where such
claim arose, the nature of same, and the items of damage or injuries claimed to
have been sustained . . ." In this case, the claim asserts that Davalos fell "at
the Hunter East Hallway, Hunter College, 68th Street and Lexington Avenue,
Manhattan." Davalos asserts that the floor was being mopped and cleaned and
"claimant was caused to slip and/or fall by reason of a dangerous, defective,
wet, slippery and otherwise unsafe condition . . ."
In Schneider v State of New York, 234 AD2d 357, 650 NYS2d 798 (2d Dept
1996), dismissal of the claim on §11 grounds was upheld where the claim
asserted that claimant had fallen in the picnic area adjacent to the parking
area at Heckscher State Park. On its motion to dismiss, defendant submitted a
map showing a number of picnic areas near a number of parking areas scattered
throughout the park. In contrast, in this case, nothing has been submitted by
defendant to suggest that there was more than one Hunter East Hallway, or,
e.g., that it was so large that sections were mopped at different times.
Note also that this claim deals with a transitory condition, for which the
precise location of the fall is less an issue than in the case of, e.g.,
a defect in a pavement surface.
In Heisler v State of New York, 78 AD2d 767, 433 NYS2d 646, 648 (4th
Dept 1980), it was stated that "[w]hat his required is not absolute exactness,
but simply a statement made with sufficient definiteness to enable the State to
be able to investigate the claim promptly and to ascertain its liability under
the circumstances. The statement must be specific enough so as not to mislead,
deceive or prejudice the rights of the State." I find that claimant has
complied with this standard with regard to the location and description of the
In view of the foregoing, it is not inappropriate to strike defendant's fifth
and sixth affirmative defenses, which assert lack of compliance with §11 of
the Act. However, the defendant's remaining affirmative defenses will not be
stricken. Affirmative defenses are not dispositive of a claim and like the
allegations in a claim, they are merely assertions made by a party. There is no
reason to strike affirmative defenses in the absence of prejudice. See., e.g.,
5 Weinstein-Korn-Miller, NY Civ Prac ¶3018.14 at 30-410. Claimant has
alleged no prejudice in this case or asserted that any scandalous matter is
contained in defendant's pleading. See CPLR 3024. Nor has claimant shown that
the non-affirmative defense portion of defendant's answer should be
Accordingly, having reviewed the parties'
, IT IS ORDERED that motion no.
M-64508 be denied except to the extent that defendant's fifth and sixth
affirmative defenses are stricken. IT IS FURTHER ORDERED that cross-motion no.
CM-64564 be denied.