This is the motion of Jennifer Villafana for permission to file a late claim
pursuant to §10.6 of the Court of Claims Act (the "Act"). In her proposed
claim, Ms. Villafana asserts that "on February 18, 2003 between approximately
3:00-4:00 p.m. at [John Jay College of Criminal Justice], located at 899 Tenth
Avenue, New York, New York . . . while the claimant was descending the front
interior staircase located in the North Hall Building between the second and
first floors [she] slipped and fell from the top step due to all of the steps
being wet. Thereafter, claimant discovered a mop bucket at the bottom of the
stairs as said stairs were apparently just mopped." See ¶3 of the proposed
claim annexed to claimant's moving papers as exhibit C. 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.
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 the instant case, claimant served CUNY with a notice of claim – brought
in Supreme Court, the wrong forum – on May 9, 2003, 80 days after the
incident. From what has been submitted, it appears that this is the first time
defendant learned of claimant's accident; there is no indication that any
incident report was prepared. In contrast, see, e.g., Avila v State
of New York, 131 Misc 2d 449, 500 NYS2d 626 (Ct Cl 1986), in which the
notice-opportunity-prejudice factors were satisfied where an incident report was
prepared two days after the incident. See also Matter of Crawford v City
University of New York, 131 Misc 2d 1013, 502 NYS2d 916 (Ct Cl 1986), in
which claimant advised the facility of her accident one day after it happened.
Moreover, with regard to the condition complained of, the passage of time makes
it more difficult for the opportunity and prejudice factors to be met. Overall,
I find that claimant fails to satisfy these three factors.
As to an alternate remedy, it appears that claimant's sole remedy lies in this
Court and thus this factor has been met. With regard to excuse, misapprehension
of the proper forum 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
Finally, it must be determined whether the proposed claim appears meritorious.
Defendant argues that this factor is not satisfied because claimant has failed
to submit an affidavit as to the accident. However, claimant has submitted as
exhibit B to her moving papers a copy of her notice of claim filed in Supreme
Court which was signed by her and notarized and which essentially reiterates the
facts alleged in the proposed claim. I conclude 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): (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."
For the foregoing reasons, having reviewed the parties'
, IT IS ORDERED that motion no.
M-68084 be granted. Within forty-five (45) days of the filing of this Decision
and Order, Jennifer Villafana shall serve and file her
and otherwise comply with §§11
and 11-a of the Court of Claims Act.