New York State Court of Claims

New York State Court of Claims

LIGHTBODY v. THE STATE OF NEW YORK, #2002-016-080, Claim No. 104183, Motion Nos. M-65146, CM-65478


Claim was dismissed as failing to comply with §11 of the Court of Claims Act. Cross-motion for permission to file late claim was denied.

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):
Alan C. Marin
Claimant's attorney:
Jordan Schiff, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Ellen S. Mendelson, Esq., AAG
Third-party defendant's attorney:

Signature date:
August 7, 2002
New York

Official citation:

Appellate results:

See also (multicaptioned case)


Motion No. M-65146 is defendant's motion to dismiss the claim of Daisy Lightbody. In her claim, Ms. Lightbody asserts that because of defendant's negligence, she slipped and fell on a stairway at the Walt Whitman Auditorium of Brooklyn College. Cross-motion no. CM-65478 is claimant's cross motion for permission to file a late claim pursuant to §10.6 of the Court of Claims Act (the "Act"). Section 11.b of the Act provides that a "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 and the total sum claimed." See Cannon v State of New York, 163 Misc 2d 623, 625, 622 NYS2d 177, 178 (Ct Cl 1994) (citation omitted) in which it was stated that "[t]he claim must plead the facts relied upon to sustain a recovery. In addition it must set forth a valid cause of action . . ." The purpose of §11 of the Act "is to give the State prompt notice of an occurrence and an opportunity to investigate the facts . . ." Id., 163 Misc 2d at 626, 622 NYS2d at 179.

Defendant asserts that Lightbody's claim does not adequately describe the location of her fall. The claim states that the incident occurred on "the stairway between the 2nd and 3rd floor within said auditorium," but does not identify a particular staircase or step(s). Defendant submits the affidavit of Richard Grossberg, General Manager of the auditorium, who states that the auditorium contains nine staircases comprised of 384 steps. He further states that even if it can be assumed the claim refers to the steps between the mezzanine and balcony levels, this encompasses two staircases with a total of 50 steps. See the April 29, 2002 affidavit of Richard Grossberg. In her opposition to defendant's motion, claimant points out only that "nothing has been submitted to show that there are more than two sets of steps leading from the third (balcony) to the second (mezzanine) floor." See ¶9 of the July 1, 2002 affirmation of Jordan Schiff, Esq. However, claimant does not identify on which of the two staircases she fell, nor does she argue that she is unable to identify which staircase. In short, Lightbody's claim fails to comply with §11 of the Court of Claims Act and this Court lacks jurisdiction over the claim. See, e.g., Griffen v State of New York, Ct Cl dated 5/19/00, Marin, J. (unreported, claim no. 97707, motion no. M-61634).
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In determining whether to grant claimant's cross-motion for permission to file a late claim, ordinarily, the 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. In this case, however, a more fundamental issue must be addressed -- whether the proposed claim complies with §11 of the Act. Lightbody's proposed new claim is identical to her original claim (but for listing the defendant as CUNY instead of the State of New York). As set forth above, the original claim is inadequate for the purposes of §11 and thus the proposed new claim is inadequate as well.

For the foregoing reasons, having reviewed the parties' submissions[1], IT IS ORDERED that motion no. M-65146 be granted and claim no. 104183 be dismissed and cross-motion no. CM-65478 be denied.

August 7, 2002
New York, New York

Judge of the Court of Claims

  1. [1]The following were reviewed: defendant's notice of motion with affirmation and affidavit in support and exhibits A-E; and claimant's notice of cross motion with affirmation in opposition and exhibits A-C.