New York State Court of Claims

New York State Court of Claims

KLEIN v. THE CITY UNIVERSITY OF NEW YORK, #2003-016-022, Claim No. 107062, Motion No. M-66279


Case Information

MEAGAN KLEIN, As Mother and Natural Guardian of JONATHAN KLEIN, an infant The caption has been amended to reflect that the sole proper defendant is the City University of New York.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The caption has been amended to reflect that the sole proper defendant is the City University of New York.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Alan C. Marin
Claimant's attorney:
Arthur G. Nevins, Jr., Esq.
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Grace A. Brannigan, Esq., AAG
Third-party defendant's attorney:

Signature date:
March 13, 2003
New York

Official citation:

Appellate results:

See also (multicaptioned case)


In the underlying claim, it is alleged that because of the negligence of the City University of New York ("CUNY"), Jonathan Klein, then 4 years old, was injured while playing soccer at the "Hunter College Child Care Center, Inc." on March 16, 2001. This is defendant's motion to dismiss on the grounds that this Court lacks jurisdiction because: (1) the claim was untimely filed for the purposes of §10.3 of the Court of Claims Act (the "Act"); and (2) the Hunter College Child Care Center, Inc. is a "private, not-for-profit [entity] . . . separate and apart from [CUNY]

. . ." See ¶5 of the December 18, 2002 affirmation of Grace A. Brannigan (the "Brannigan Aff."). With regard to timeliness, defendant argues that claimant failed to serve a notice of intention or claim within 90 days of the incident pursuant to §10.3 of the Act. However, §10.5 of the Act tolls the claim of an infant and thus Klein's claim was timely made here.

As to the Hunter College Child Care Center, Inc., defendant submits a New York Department of State "Corporate Record," which indicates that such entity was incorporated on October 8, 1987 as a "domestic not for profit" corporation. Defendant also submits a page from the Center's website, which states, inter alia, that "[t]he Center is governed by a Board of Directors. They are responsible for the general management of the Center. The Director, as the on-site administrator, reports to the Board of Directors. The Center staff members are directly responsible for the care of the children and for providing appropriate activities. The staff members report to the director." See exhibits B and C to the Brannigan Aff.

Claimant, however, contends that the website is that of the current day care center, which was not operating at the time of the incident in this claim. See ¶3 of the February 4, 2003 affirmation of Arthur G. Nevins, Jr. (the "Nevins Aff."). Claimant also points out that when Meagan Klein requested a copy of the incident report involving Jonathan, it was sent by the "Dean of Staff and Faculty Relations" in the Legal Affairs Office of Hunter College. Furthermore, the incident report itself is a CUNY form and an "Hours of Care Agreement" concerning Jonathan is on Hunter College stationery. Finally, a receipt provided to Ms. Klein is entitled "Hunter College - Bursar's Office Receipt." See exhibits 1-4 to the Nevins Aff. In view of the foregoing, dismissal is not warranted at this juncture.

Accordingly, having reviewed the parties' submissions,[1] IT IS ORDERED that motion no. M-66279 be denied.

March 13, 2003
New York, New York

Judge of the Court of Claims

  1. [1]The following were reviewed: defendant's notice of motion with affirmation in support and exhibits A-C; and claimant's affirmation in opposition with exhibits 1-4.