New York State Court of Claims

New York State Court of Claims

VILLAFANA v. THE CITY UNIVERSITY OF NEW YORK, #2004-016-022, Claim No. None, Motion No. M-68084


Case Information

JENNIFER VILLAFANA The caption has been amended to reflect that the sole proper defendant is the City University of New York.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The caption has been amended to reflect that the sole proper defendant is the City University of New York.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Alan C. Marin
Claimant's attorney:
Andrea & Towsky, Esqs.By: Thomas H. Hanna, Jr.
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Grace A. Brannigan, Esq., AAG
Third-party defendant's attorney:

Signature date:
May 11, 2004
New York

Official citation:

Appellate results:

See also (multicaptioned case)


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.[1]

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 (1997).

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' submissions[2], 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 claim[3] and otherwise comply with §§11 and 11-a of the Court of Claims Act.

May 11, 2004
New York, New York

Judge of the Court of Claims

  1. [1]See Bay Terrace Coop. Section IV, Inc. v New York State Employees' Retirement Sys. Policemen's and Firemen's Retirement Sys., 55 NY2d 979, 449 NYS2d 185 (1982); Scarver v State of New York, 233 AD2d 858, 649 NYS2d 280 (4th Dept 1996).
  2. [2]The following were reviewed: claimant's notice of motion with affirmation in support and exhibits A-C; and defendant's affirmation in opposition.
  3. [3]As set forth above, the claim shall name only the City University of New York as defendant.