New York State Court of Claims

New York State Court of Claims

WANCEL v. CITY UNIVERSITY OF NEW YORK, #2003-030-560, Claim No. None, Motion No. M-66740


motion for permission to late file claim against CUNY granted

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):

Claimant's attorney:
Defendant's attorney:
Third-party defendant's attorney:

Signature date:
July 25, 2003
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers numbered 1 to 5 were read and considered on Claimant's motion

for permission to serve and file a late claim brought pursuant to Court of Claims Act §10(6):

1-3 Notice of Motion; Affirmation in Support by Thomas P. Spier, Esq., Counsel for Claimant and accompanying exhibits; Proposed Claim

  1. Affirmation in Opposition by Grace A Brannigan, Assistant Attorney General
  1. Reply Affirmation by Thomas P. Spier, Esq.
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.[1] The 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 York, 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 Retirement System, 55 NY2d 979, 981 (1982); Broncati v State of New York, 288 AD2d 172 (2d Dept 2001).

Additionally, the motion must be timely brought in order to allow that a late claim be filed " 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. [Exhibit F].[2] 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. [Exhibit A].

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." [Exhibit G].

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 accrual).

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.

So Ordered.

July 25, 2003
White Plains, New York

Judge of the Court of Claims

[1] The Defendant has not opposed the motion on the ground of availability of another remedy, therefore this factor is presumed to weigh in claimant's favor. Cole v State of New York, 64 AD2d 1023, 1024 (4th Dept 1978)["Although the State argues in this appeal that claimant's inference of notice to it is based on equivocal facts, it filed no affidavit with the court claiming either prejudice or lack of notice. When answering affidavits are not produced, the facts alleged in the moving affidavits will be taken by the court as true....(citations omitted)."] It is unclear whether the lawsuit commenced against the City of New York and the Dormitory Authority of the State of New York is still pending.
[2] All lettered exhibits are appended to the Affirmation of Thomas P. Spier, Esq., Counsel for Claimant.