New York State Court of Claims

New York State Court of Claims

SCHIOP v. THE STATE OF NEW YORK, #2003-016-082, Claim No. 107217, Motion Nos. M-67275, CM-67356


Claimant was granted permission to file a late claim alleging a slip and fall at New York City Technical College.

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:
Friedman Levy & Goldfarb, P.C.By: David J. Kresman, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Grace A. Brannigan, Esq., AAG
Third-party defendant's attorney:

Signature date:
October 10, 2003
New York

Official citation:

Appellate results:

See also (multicaptioned case)


This is the motion of Gabriela Schiop for permission to file a late claim pursuant to §10.6 of the Court of Claims Act (the "Act") and to strike defendant's sixth affirmative defense, which states that "[t]he City University of New York is a governmental entity that must be individually named as a party and served in accordance with Article 125 of the Education Law." Defendant cross-moves to dismiss claim no. 107217 on the ground that it was not served on the City University of New York ("CUNY"). Ms. Schiop's claim arises from a September 5, 2002 incident in which she allegedly slipped and fell in the hallway outside the cafeteria of New York City Technical College, one of CUNY's senior colleges. See The Green Book, The Official Directory of the City of New York, 2002-2003, pp. 73-77. In claim no. 107217, claimant names the State of New York as defendant. 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. Moreover, it is undisputed that claimant failed to serve either her notice of intention or her claim on CUNY. Section 11.a.(ii) of the Court of Claims Act requires that both notices of intention and claims against CUNY shall be served on both the Attorney General and CUNY. "It is well established that compliance with sections 10 and 11 of the Court of Claims Act pertaining to the timeliness of filing and service requirements respecting claims and notices of intention to file claims constitutes a jurisdictional prerequisite to the institution and maintenance of a claim . . ." Byrne v State of New York, 104 AD2d 782, 783, 480 NYS2d 225, 227 (2d Dept 1984), lv denied, 64 NY2d 607, 488 NYS2d 1023 (1985) (citations omitted).

In sum, this Court lacks jurisdiction over claim no. 107217 and thus Schiop's motion for permission to file a late claim must be considered.[1] 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.[2]

The first three factors – whether 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, immediately following her fall, Schiop was taken to the college's central office where a CUNY Public Safety Service Incident Report was filed, which states that "[o]n Thursday, September 5, 2002 @1043 . . . student Gabriela Schiop reported to central office that she slipped and fell by the Namm Cafeteria 1st Fl Namm. Ms. Schiop was referred to the Student Health Services area . . . where she was treated by Susan Gonnella MD. After being examined Ms. Schiop left on her own." Claimant asserts that such report was prepared within an hour and a half after the accident. See ¶7 of the August 15, 2003 affirmation of David J. Kresman (the "Kresman Aff.") and exhibit B thereto. That same day, claimant also prepared a written statement on a New York City Technical College form as to the accident and had two student eyewitnesses sign the form. Such states that claimant was going to the cafeteria and "[t]here was a substance on the floor that made me [fall] . . . There was no sign that will [alert] you that there is a substance on the floor. . ." See exhibit C to the Kresman Aff. On balance, I find that these three factors of the Act have been met. See, e.g., Avila v State of New York, 131 Misc 2d 449, 500 NYS2d 626 (Ct Cl 1986) and Matter of Crawford v City University of New York, 131 Misc 2d 1013, 502 NYS2d 916 (Ct Cl 1986), where notice was made within two and 18 days, respectively.

As to an alternate remedy, it is undisputed that Schiop's sole remedy would lie against CUNY in this Court. As to excuse, claimant states that "[t]he delay in serving [CUNY] and failing to name [CUNY] pursuant to Education Law Article 125 was inadvertent." See ¶12 of the Kresman Aff. Such is not a valid excuse for the purposes of the Act. 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. With regard to this factor, claimant has submitted an affidavit stating that as she approached the cafeteria entrance, she slipped on a "wet/slippery condition on the floor. As the result of falling I sustained a tear of my left anterior cruciate ligament and a tear of my medial meniscus. . . . After I fell, I felt and saw that there was a great deal of this wet and slippery liquid on the floor. It felt like some kind of oil. The liquid was clear. I saw a maintenance man from the school using a mop to try to clean up the liquid on the floor near the entrance of the cafeteria. I also saw that there were no signs or warnings that this wet and slippery substance was all over the floor. . ." Claimant also annexes certain medical records to her papers. See exhibits A and I to the Kresman Aff.

In short, 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."

In view of the foregoing, having reviewed the parties' submissions[3], IT IS ORDERED that cross-motion no. CM-67356 be granted and claim no. 107217 be dismissed. IT IS FURTHER ORDERED that motion no. M-67275 be granted to the extent that claimant shall be permitted to file a late claim. Within forty-five (45) days of the filing of this Decision and Order, she shall file her claim with the Clerk of the Court and serve her claim on the Attorney General and the City University of New York and otherwise comply with §§11 and 11-a of the Court of Claims Act.[4]

October 10, 2003
New York, New York

Judge of the Court of Claims

  1. [1]With regard to her late claim application, Schiop has failed to submit a proposed claim with her papers. For the purposes of this motion, the Court will assume that claim no. 107217, which is annexed to her moving papers as exhibit G, is her proposed claim.
  2. [2]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).
  3. [3]The following were reviewed: claimant's notice of motion with affirmation in support, exhibits A-J and memorandum of law in support; defendant's notice of cross-motion with annexed affirmation; and claimant's "Affirmation in Opposition and in Reply."
  4. [4]Claimant shall use the text of the claim annexed to her moving papers as exhibit G, but shall name as defendant the City University of New York, not the State of New York.