New York State Court of Claims

New York State Court of Claims

ECKERT v. THE CITY UNIVERSITY OF NEW YORK, #2003-016-057, Claim No. None, Motion No. M-66770


Late claim motion alleging slip and fall at Queens College was granted.

Case Information

EVA H. ECKERT 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:
Baron & PagliughiBy: Peter D. Baron, Esq. And Joseph Tipaldo, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Grace A. Brannigan, Esq., AAG
Third-party defendant's attorney:

Signature date:
August 6, 2003
New York

Official citation:

Appellate results:

See also (multicaptioned case)


This is the motion of Eva H. Eckert for an order permitting her to file a late claim pursuant to §10.6 of the Court of Claims Act (the "Act"). In her proposed claim, Ms. Eckert alleges that because of defendant's negligence, she tripped and fell on an uneven sidewalk at Queens College, one of the senior colleges of the City University of New York ("CUNY"). In order to decide this motion, 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) defendant was substantially prejudiced; (4) claimant has any other available remedy; (5) the delay was excusable and (6) the claim appears to be meritorious. The factors are not necessarily exhaustive, nor is the presence or absence of any particular factor controlling.[1]

The first, second and third factors – whether the defendant had notice of the essential facts, had an opportunity to investigate or would be prejudiced by the granting of this motion are intertwined and may be considered together. See Brewer v State of New York, 176 Misc 2d 337, 342, 672 NYS2d 650, 655 (Ct Cl 1998). In this case, a notice of intention was served on December 19, 2000 – 81 days after Eckert's September 29, 2000 fall – and a claim was served on August 14, 2001. Although such were found to be inadequate for the purposes of §11 of the Act with regard to the location of the accident,[2] they did supply notice as to what happened and as to Ms. Eckert's intention to bring a claim. Moreover, at the time of the incident, two Queens College police officers responded to the scene and one of them prepared an incident report on that date. With regard to the accident site, the report states that "Side was raised about 3 inches [and] uneven." The report also notes that it was "forwarded to Mr. Jones, [Assistant Director Public] Safety, and Ms. Zensky-Denkensohn" and it bears a stamp indicating that it was received by the Queens College "Special Counsel to the President" on October 2, 2000. See pp. 2 and 3 of the April 29, 2003 affirmation of Peter D. Baron (the "Baron Aff.") and exhibit B thereto. Overall, I find that these three factors of the Act have been satisfied.

As to an alternate remedy, Eckert's claim lies solely against CUNY in this Court. As to excuse, as set forth above, Eckert was required to file the instant motion because her initial notice of intention and claim were found lacking for the purposes of §11 of the Act. Accordingly, the excuse factor of the Act has not been met. See, e.g., Matter of E.K. (Anonymous) v State of New York, 235 AD2d 540, 652 NYS2d 759 (2d Dept 1997), lv denied 89 NY2d 815, 659 NYS2d 856 (1997).

The final factor to be considered is merit. Initially on this factor, it must be noted that claimant has submitted two proposed claims – in her initial moving papers, a proposed claim was submitted as part of exhibit F. She subsequently revised the proposed claim and attached it to her reply papers. Defendant objects to the submission of the revised proposed claim on the grounds that the changes therein do not consist of "inadvertent typographical errors" but rather respond to problems with the initial proposed claim that were identified in defendant's opposition papers. Specifically, defendant points out the revised proposed claim for the first time: (1) states that Eckert tripped on the west – as opposed to east -- side of the sidewalk, which has been identified as having a larger height differential[3]; (2) is verified and accompanied by an affidavit of someone with knowledge, i.e., Ms. Eckert; and (3) alleges actual or constructive notice of the alleged dangerous condition. Defendant has advanced no authority that such revised proposed claim is inappropriate. As to tripping on the west or east side of the sidewalk, even if claimant had tripped on the east side (with only a ½" height differential), "[t]here is no rule that municipal liability, in a case involving minor defects in the pavement, ‘turns upon whether the hole or depression . . .is four inches – or any other number of inches . . .' Instead, whether a dangerous or defective condition exists . . . "‘depends on the peculiar facts and circumstances of each case' and is generally a question of fact for the jury" . . ." Trincere v County of Suffolk, 90 NY2d 976, 977, 665 NYS2d 615, 616 (1997) (citations omitted). Accordingly, the revised proposed claim annexed to claimant's reply papers will be considered on this motion.

In her proposed claim, Ms. Eckert states that she fell on:
an uneven portion of sidewalk, the depth of which was approximately two inches, on the west side of the sidewalk next to the New Science Building (sign), opposite the elementary school, approximately 384 feet north of Melbourne Avenue, at the 150th Street Gate 2 entrance at the Queens College Campus located at 65-30 Kissena Boulevard, Flushing New York 11367.

She states that she suffered a "Right bimalleolar ankle fracture which required surgery" and attaches to her moving papers a copy of her Columbia-Presbyterian Hospital discharge summary regarding same. She also submits the affidavit of William Marletta, Ph.D., CSP, who holds a Ph.D. and M.A. from New York University in Occupational Safety and Health. Dr. Marletta reviewed the site of claimant's accident and states that the sidewalk was raised approximately 1 3/4" to 2" on the west side, 1 1/4" in the middle and ½" on the east side. He further states that his constituted a trip hazard which caused claimant's accident and which was a "significant departure from good and accepted safe practice." See exhibit J to the Baron Aff.

I find that claimant meets the standard set forth in Matter of Santana v New York State Thruway Authority, 92 Misc 2d 1, 11, 399 NYS2d 395, 402-03 (Ct Cl 1977) for the appearance of merit: (i) the claim "must not be patently groundless, frivolous or legally defective" and (ii) upon consideration of the entire record, including the proposed claim and any exhibits or affidavits, "there is reasonable cause to believe that a valid cause of action exists."

For the foregoing reasons, having reviewed the parties' submissions[4], IT IS ORDERED that motion no. M-66770 be granted. Within forty-five (45) days of the filing of this Decision and Order, claimant shall serve and file the claim annexed to her reply papers – naming only the City University of New York as defendant – and otherwise comply with §§11 and 11-a of the Court of Claims Act.

August 6, 2003
New York, New York

Judge of the Court of Claims

  1. [1]See Bay Terrace Coop. Section IV, Inc. v New York State Employees' Retirement Sys. Policemen's and Firemen's Retirement Sys., 55 NY2d 979, 449 NYS2d 185 (1982); Scarver v State of New York, 233 AD2d 858, 649 NYS2d 280 (4th Dept 1996).
  2. [2]See this Court's Decision and Order filed on March 11, 2003.
  3. [3]Defendant argues that if claimant fell on the east side of the sidewalk where there was a ½" height differential, "[c]ase law reflects a prevailing view that differences in elevation of about one inch, without more, are non-actionable." See ¶10 of defendant's affirmation in opposition.
  4. [4]The following were reviewed: claimant's notice of motion with affirmation in support and exhibits A-J; defendant's affirmation in opposition; claimant's reply affirmation; and defendant's affirmation in further opposition.