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.
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
For the foregoing reasons, having reviewed the
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.