New York State Court of Claims

New York State Court of Claims

GAGLIARDI v. THE CITY UNIVERSITY OF NEW YORK, #2004-016-052, Claim No. None, Motion No. M-68616


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):

Alan C. Marin
Claimant's attorney:
Longo & D'Apice, Esqs.By: Michelle B. Kanter, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Grace A. Brannigan, Esq.
Third-party defendant's attorney:

Signature date:
September 13, 2004
New York

Official citation:

Appellate results:

See also (multicaptioned case)


This is the motion of Clara Gagliardi and her husband Andrew Vana for permission to file a late claim pursuant to §10.6 of the Court of Claims Act. In the proposed claim, it is alleged that because of defendant's negligence, Ms. Gagliardi tripped and fell on a walkway at the College of Staten Island on September 30, 2003, injuring her knees, back and neck. 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 this case, an incident report was prepared on November 25, 2003. In addition, claimants commenced an action in Supreme Court, Richmond County, serving a "notice of claim" on the College of Staten Island on December 23, 2003, and on the City University on December 26, 2003. While such did not advise of an action in the Court of Claims, it of course put the City University on notice of a claim, and provided detailed information as to the location of the accident site, including ten photographs. Defendant states that the City University failed to have notice of the essential facts of this claim, but provides no argument or explanation. Overall, I find that these three factors have been met.

As to an alternate remedy, claimants' venue lies solely in this Court and thus this factor has been met. With regard to excuse, claimants concede that their reason for late filing – that counsel was unaware that this claim must be brought in the Court of Claims – "is not excusable." See p. 3 of the June 7, 2004 affirmation of Michelle B. Kanter. See, e.g., Matter of E.K. 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. Claimants have submitted a copy of their testimony in the Supreme Court 50-H hearing along with an MRI report and a report from Clara Gagliardi's physician, stating that an "MRI

. . . revealed a 1.5 cm oval osseous lesion in the posterolateral femoral metaphysis. . . . A repeat MRI . . . reveal[ed] a non-ossifying fibroma . . . It is my opinion that the patient as a result of her accident sustained a derangement of the left knee aggravating a pre-existing quiescent non-ossifying fibroma." See exhibit E to claimants' moving papers.

Defendant essentially argues that the claim does not appear meritorious because the height differential in question is de minimus, citing Clara Gagliardi's 50-H testimony in which she states that the height differential in question was "about an inch." In Trincere v County of Suffolk, 90 NY2d 976, 665 NYS2d 615 (1997), the Court of Appeals rejected the concept that a defect must be of a certain minimum height or depth in order to be actionable, and held that liability depends on the "peculiar facts and circumstances of each case." The Court went on to explain that the trier of fact must look at "the facts presented, including the width, depth, elevation, irregularity and appearance of the defect along with the ‘time, place and circumstance' of the injury . . . ." 90 NY2d at 978, 665 NYS2d at 616 (citations omitted).

The alleged defect in this case appears to be a height differential of approximately one inch which runs the entire length of two adjoining slabs of concrete. See exhibit B to claimants' moving papers. At trial, it may ultimately be determined that such is not a dangerous condition, but for the purposes of this late claim motion, I find that claimants meet 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."[2]

For the foregoing reasons, having reviewed the submissions,[3] IT IS ORDERED that motion no. M-68616 be granted and that within forty-five (45) days of the filing of this Decision and Order, claimants shall serve and file their claim and otherwise comply with §§11 and 11-a of the Court of Claims Act.

September 13, 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]Defendant also argues that the claim lacks merit because of a discrepancy between the accident report and Clara Gagliardi's 50-H testimony as to when she learned that she should file an accident report. I do not find that such discrepancy is sufficient to alter my finding of the appearance of merit. Similarly, issues as to the extent of Ms. Gagliardi's injuries do not change my finding.
  1. [3]The following were reviewed: claimants' notice of motion with affirmation and affidavit in support and exhibits A-E; defendant's affirmation in opposition; and claimants' reply affirmation.