New York State Court of Claims

New York State Court of Claims

BARRY v. THE STATE OF NEW YORK, #2004-016-006, Claim No. 107520, Motion Nos. M-67526, CM-67614


Synopsis


Case Information

UID:
2004-016-006
Claimant(s):
VERONICA R. BARRY
Claimant short name:
BARRY
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
107520
Motion number(s):
M-67526
Cross-motion number(s):
CM-67614
Judge:
Alan C. Marin
Claimant's attorney:
Veronica R. Barry
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Grace A. Brannigan, Esq., AAG
Third-party defendant's attorney:

Signature date:
February 19, 2004
City:
New York
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

This is defendant's motion for summary judgment dismissing the claim of Veronica R. Barry. Ms. Barry cross-moves to amend her claim to add the City University of New York ("CUNY") to the caption. Claimant alleges that she registered and paid for two courses at the College of Staten Island, and received outlines for the classes. According to Barry, when the classes commenced, defendant "altered the courses" from the outlines and because "the courses were altered, the claimant, who is . . . covered under the . . .[Americans with] Disabilities Act, was no longer able to handle the curriculum material." Claim, ¶2. In her claim, Ms. Barry sued the State of New York, and did not name CUNY as a defendant, although she did serve CUNY with her claim. The only proper defendant in this case is CUNY. See, e.g., Davalos v City University of New York, Ct Cl dated February 4, 2002 (unreported, claim no. 105280, motion nos. M-64508 and CM-64564, UID #2002-016-010,[1] Marin, J.), in which it was stated that "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 also §11a.(ii) of the Court of Claims Act.

As set forth above, Barry has requested that she be permitted to amend her claim to add CUNY as a defendant. This relief is not available here inasmuch as under the Court of Claims Act, such a defect cannot be remedied as claimant proposes. See, e.g., Grande v State of New York, 160 Misc 2d 383, 609 NYS2d 512 (Ct Cl 1994). Ms. Barry may wish to make a motion for permission to file a late claim against CUNY pursuant to §10.6 of the Court of Claims Act.

Accordingly, having reviewed the parties' submissions[2], IT IS ORDERED that motion no. M-67526, be granted, cross-motion CM-67614 be denied and claim no. 107520 be dismissed.

February 19, 2004
New York, New York

HON. ALAN C. MARIN
Judge of the Court of Claims





  1. [1]This and other decisions of the Court of Claims may be found on the Court's website: www.nyscourtofclaims.state.ny.us.
  2. [2]The following were reviewed: defendant's notice of motion with affirmation in support and exhibits A and B; claimant's notice of cross-motion with affidavit in support and exhibits A-D; and defendant's affirmation in opposition to cross-motion and further support of motion, with exhibits A-D.