The court read and considered the following papers on claimant's motion for
to file a late claim: Notice of Motion, Affirmation, Affidavits and Exhibits;
Claimant seeks permission, pursuant to Court of Claims Act §10(6), to file
a claim alleging that defendant's negligence was responsible for a March 2, 2002
incident in which he was injured when a window fell on his hand at Hunter
College. On May 15, 2002, claimant mailed a "Notice of Claim" –
addressed to the New York City Board of Education, The City of New York and
Hunter College at the City University of New York – to Hunter College (as
well as on the City and the Board of Education) by certified mail, return
Claimant's counsel states that, as he began to prepare papers to commence an
action, he realized that a mistake had been made – specifically that the
Attorney General had not been served as is required, in addition to service upon
CUNY, for a notice of intention to file a claim to achieve its effect of
extending the 90-day period in which to commence an action against CUNY (Court
of Claims Act §§ 10, 11[a][ii])– and the instant motion
Preliminarily, the Court notes that CUNY is the sole proper party defendant
under the facts alleged and that the Court of Claims is the sole proper forum
for such an action, notwithstanding claimant's earlier attempts to proceed,
apparently, in Supreme Court pursuant to the General Municipal Law (see,
Education Law § 6224).
Court of Claims Act § 10(6) grants the court the discretion to allow the
filing of a late claim after taking into account all relevant factors, including
the following: whether claimant's delay was excusable, whether defendant had
timely notice of the facts constituting the claim, whether defendant had a
timely opportunity to investigate, whether defendant would be substantially
prejudiced by an order allowing late filing, whether there is apparent merit to
the claim and whether claimant has an alternate remedy (Bay Terrace Coop.
Section IV v New York State Employees' Retirement Sys. Policemen's and Firemen's
Retirement Sys., 55 NY2d 979).
Here, claimant's delay was the result of mistakes concerning the proper party
defendant and the proper statute under which to proceed (the Court of Claims Act
as opposed to the General Municipal Law ), mistakes that are not "excusable"
within the meaning of the statute (Ouziel v State of New York, 174 Misc
2d 900; Nyberg v State of New York, 154 Misc 2d 199). Nevertheless, the
court finds that the remaining statutory factors weigh in favor of granting the
Defendant admits that it received claimant's "Notice of Claim," which it
treated as a notice of intention to file a claim, on May 16, 2002, well within
the initial 90-day period. Thus, notwithstanding the failure to serve the
Attorney General, defendant had notice of claimant's contemplated action and the
timely opportunity to investigate, and would suffer no prejudice from the
technical failure to effect proper service. Defendant does not contend
With respect to the apparent merit of the proposed claim, claimant submits an
affidavit from an engineer who inspected the offending window, with the
claimant, on July 10, 2002 and who details the alleged improper maintenance of
the window resulting in claimant's injuries. Although defendant vigorously
disputes the merits of claimant's allegations, no affidavit from someone with
knowledge, or any other probative evidence, has been produced disputing such
allegations and they are therefore accepted as true for the purpose of this
motion (see e.g., Schweickert v State of New York, 64 AD2d 1026; Cole
v State of New York, 64 AD2d 1023) Claimant's burden is merely to show that
the proposed claim is not patently groundless, frivolous or legally defective
and that there is reasonable ground to believe that a cause of action may exist
(Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1).
Claimant's submission meets that burden.
As previously noted, the Court of Claims is the sole forum for claimant's
action against CUNY and he thus has no alternate remedy.
In accordance with the foregoing, the motion is granted. Claimant is directed
to serve (on CUNY and the Attorney General) and file his claim (with the crucial
correction that the defendant should be the City University of New York, as it
is on the caption of the notice of motion, not the State of New York, as it is
on the proposed claim) in accordance with the relevant provisions of the Court
of Claims Act and the Uniform Rules for the Court of Claims, including payment
of the filing fee, within 40 days of the filing of this order.