After carefully considering the papers submitted and the applicable law the
motion is disposed of as follows:
In order to determine an application for permission to serve and file a late
claim, the Court must consider, "among other factors," the six factors set
forth in §10(6) of the Court of Claims Act. The factors stated therein
are: (1) whether the delay in filing the claim was excusable; (2) whether the
State had notice of the essential facts constituting the claim; (3) whether the
State had an opportunity to investigate the circumstances underlying the claim;
(4) whether the claim appears meritorious; (5) whether substantial prejudice
resulted from the failure to timely file and the failure to serve upon the
Attorney General a timely claim or notice of intention to file a claim; and (6)
whether any other remedy is available.
Court is afforded considerable discretion in determining whether to permit the
late filing of a claim. See, e.g.
, Matter of Gavigan v State of New
, 176 AD2d 1117, 1118 (3d Dept 1991). The presence or absence of any
particular factor is not dispositive Bay Terrace Coop. Section IV, Inc. v
New York State Employees' Retirement System Policemen's & Firemen's
, 55 NY2d 979, 981 (1982); Broncati v State of New
, 288 AD2d 172 (2d Dept 2001).
Additionally, the motion must be timely brought in order to allow that a late
claim be filed "...at any time before an action asserting a like claim against a
citizen of the state would be barred under the provisions of article two of the
civil practice law and rules...." § 10(6) Court of Claims Act. Here, the
applicable statute of limitations is three (3) years, thus the motion is timely.
Civil Practice Law and Rules §214.
A claim appears to be "meritorious" within the meaning of the statute if it is
not patently groundless, frivolous or legally defective and a consideration of
the entire record indicates that there is reasonable cause to believe that a
valid cause of action exists. Matter of Santana v New York State Thruway
Auth., 92 Misc 2d 1 (Ct Cl 1977). Claimant need not establish a prima
facie case at this point, but rather the appearance of merit. See,
e.g., Jackson v State of New York, Ct Cl, Claim No. NONE, Motion No.
M-64481, Midey, J., February 19, 2002.
The proposed claim provides that on July 7, 2000 at approximately 8:00 a.m.
Linda Rodriguez Wancel, the claimant herein, tripped and fell on the sidewalk in
front of New York City Technical College, a division of the City University of
New York (hereafter CUNY), at 300 Jay Street, between Tillary Street and Tech
Place, in Kings County, New York. The affidavit of Claimant's surveyor, Gerald
T. O'Buckley, P.L.S. attests that the location of the portion of the sidewalk
upon which Claimant fell falls within the property line of the premises known as
300 Jay Street, owned by the fee owner and/or New York City Technical College.
An incident report apparently
prepared by personnel from the New York City Technical College Department of
Public Safety, describing the weather as "clear" and "70
", confirms the occurrence of the accident, and Claimant's transport to
Lutheran Hospital for treatment for a scraped left knee and scraped palms.
Notices of Claim were filed with the City of New York, the Dormitory Authority
of the State of New York (hereafter Dormitory Authority), and New York City
Technical College. [Exhibits B and C]. A lawsuit was commenced against the City
of New York and the Dormitory Authority in Kings County Supreme Court, and
appears to have been dismissed as against the Dormitory Authority by Order
entered upon motion for summary judgment on February 10, 2003. [Exhibit M]. In
an affidavit submitted in support of the motion for summary judgment, the
Managing Assistant Counsel for the Dormitory Authority notes that title to the
premises would eventually be conveyed to the City of New York as required by
Public Authorities Law §180.2.d(2)(b), upon cessation of CUNY's activities
there, or upon payment of the bonds issued to finance the facilities. [Exhibit
K, Durkin Affidavit ¶5]. A lease agreement dated 1994 provides that CUNY be
responsible for maintenance of the premises. [Exhibit J]. Another Dormitory
Authority employee, Claude Zamor, also states that "the maintenance of the
sidewalk was and is the responsibility of the New York City Technical College."
[Exhibit L. Zamor Affidavit ¶2].
In her affidavit, Claimant indicates that she tripped on a raised slab of
sidewalk, and describes the height differential between one slab and the
adjacent slab as exceeding one inch. [Exhibit H]. Photographs depicting the
location of the accident are included as exhibits to her affidavit. [Id].
Nicholas Bellizzi, a civil engineer, states in his affidavit that within a
reasonable degree of engineering certainty the height differential depicted in
the photographs presented a tripping hazard to those using the sidewalk; and
that the height differential between the two concrete slabs is "substantial."
Alvin M. Bregman, her treating orthopedic surgeon, first saw Claimant in
connection with a left knee problem in 1999. [Exhibit E]. She underwent an
arthroscopic surgical procedure on August 20, 1999. [Id]. Dr. Bregman
opines that the fall on July 7, 2000 had re-injured her left knee; and that this
fall, ultimately, resulted in arthroscopic surgery of the left knee on August
16, 2001. [Id; See, also, Exhibit D].
Focusing in on the factors that have been addressed by Defendant, the Court
agrees that Claimant has offered no reasonable excuse for the delay in pursuing
a claim against CUNY. There is some authority for the proposition that a
"diligent", although mistaken, pursuit of a claim against another governmental
entity may constitute an excusable delay [See, e.g., Weaver v State of
New York, 112 AD2d 416 (2d Dept 1985); Richeson v State of New York,
98 AD2d 656 (1st Dept 1983); Matter of Gross v State of New York, 9 AD2d
594 (3d Dept 1959); Matter of Lebensfeld v State of New York, 14 Misc 2d
936 (Ct Cl 1958)], although if the proper entity was readily ascertainable this
does not alone constitute excusable delay. See, e.g., Erca v
State of New York, 51 AD2d 611 (3d Dept 1976), aff'd., 42 NY2d 854
(1977); Mattice v Town of Wilton, 160 AD2d 1195 (3d Dept 1990); Gatti
v State of New York, 90 AD2d 840 (2d Dept 1982).
Thus, when Claimant pursued a claim against Westchester County, learning only
more than three months after his pursuit that the State, rather than the County,
was responsible for maintaining the site of the accident, and the claimant then
promptly brought a motion to file a late claim, the Court of Claims was ruled to
have abused its discretion in denying the initial application. Weaver v State
of New York, supra. It is noted that in that case "...personnel in
the Westchester County Attorney's Office [had assured Claimant] that the county
owned the Cross County Parkway." Id., at 417.
Clearly, more recent case law militates against viewing having pursued the
wrong party as a reasonable excuse for the delay. See, e.g., Matter of
Maurantonio v State of New York, 266 AD2d 290 (2d Dept 1999). Where, as
here, other factors favor the Claimant such a reason for the delay - while not
compelling - does not wholly favor denial of the motion. See, e.g.,
Marcus v State of New York, 172 AD2d 724 (2d Dept 1991).
The Defendant has taken no position with respect to the related factors of
notice, opportunity to investigate, and prejudice to CUNY. These weigh toward
Claimant, in that CUNY employees were directly involved in noting the fact of
the accident, according to the undisputed documents presented by Claimant. The
almost three year passage of time at first seems great, but given the
involvement of CUNY employees, and the service of a notice of claim - albeit
mistakenly - on the New York City Technical College in September, 2000
[See, Exhibit C], the Court finds that the passage of time since the
incident has not been so great that CUNY's ability to investigate is impeded to
its prejudice. Cf., Edens v State of New York, 259 AD2d 729 (2d
Dept 1999) (Two years and two and one-half months from date of
As noted, Claimant need not establish her claim prima facie, but rather
show the appearance of merit. Jackson v State of New York, supra.
If the allegations in the claim are accepted as true for the purposes of the
motion, Claimant has made the requisite showing of merit in order to permit late
filing of her claim.
It is true, as Defendant asserts, that there is authority for holding that
differences in the elevation level of a sidewalk of less than an inch - or other
"trivial" height differential - should not be actionable. Trincere v County
of Suffolk, 232 AD2d 400 (2d Dept 1996), affd, 90 NY2d 976 (1997);
Buono v City of New York, 240 AD2d 689 (2d Dept 1997). Nonetheless,
Claimant avers in her affidavit that the height differential was greater than
one inch. Her expert finds the height differential "substantial" and a
"tripping hazard." For late claim purposes, then, the Claimant may have a valid
claim of a defective condition. According to the documents submitted by
Claimant, CUNY has at least some level of management or control over the
premises. Whether it is an owner or not is not determinative at this phase. At
trial, of course, Claimant may be found to have failed to see a readily
observable defect in her path [See, e.g., Doyle v State of New
York, 271 AD2d 394, 395 (2d Dept 2000)], or CUNY may not have been
responsible for the maintenance of the sidewalk, or aware of the conditions,
but these are other matters entirely.
Accordingly, Claimant's motion for permission to file a late claim against the
City University of New York is hereby granted. Claimant is directed to serve
her claim upon the Attorney General and CUNY, and to file a Claim identical to
the proposed Claim, with the Chief Clerk of the Court of Claims within
forty-five (45) days from the date of filing of this decision and order in the
Clerk's office, with such service and filing to be in accordance with the Court
of Claims Act, with particular reference to §§10, 11 and 11-a, and the
Uniform Rules for the Court of Claims.