New York State Court of Claims

New York State Court of Claims

NIEVES v. THE CITY UNIVERSITY OF NEW YORK, #2004-016-064, Claim No. None, Motion No. M-68796


Late claim motion was granted

Case Information

EDDIE NIEVES 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:
Bisogno & MeyersonBy: George D. Silva, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Grace A. Brannigan, Esq., AAG
Third-party defendant's attorney:

Signature date:
November 19, 2004
New York

Official citation:

Appellate results:

See also (multicaptioned case)


This is the motion of Eddie Nieves for permission to "serve and file a late Notice of Intention and/or to file and serve a late claim . . ." Mr. Nieves' proposed claim alleges that on January 28, 2004, while working as a security guard at Queens College, he slipped and fell on a patch of ice outside his post, a security booth at Melburne Avenue and 150th Street in Queens.[1] At the time, he was employed by Securitas/Security Services. His alleged injuries include "[i]njuries to his Right Shoulder, Impingement Syndrome and tear of the labrum of the right shoulder . . ." As an initial matter, it should be noted that there is no authority in the Court of Claims Act (the "Act") for granting permission to serve and file a late notice of intention. However, §10.6 of the Act provides that under certain circumstances, permission may be granted to serve and file a late claim. In order to determine 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.[2]

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, according to claimant, three City University security officers came to the scene of his fall and an incident report was prepared, which he signed.[3] Defendant makes no argument with regard to these three factors and overall, I find that they have been met.

As to an alternate remedy, defendant argues that claimant has a "partial alternate remedy in the form of workers compensation benefits . . ." The remedies afforded under the Workers' Compensation Law are statutorily limited and do not compensate for pain and suffering. See Workers' Compensation Law §15. With regard to excuse, claimant contends that he was unable to retain an attorney within the 90 days following his accident, but he provides no details and there is no evidence that he was hospitalized or convalescing for the entire 90 day period. See, e.g., Goldstein v State of New York, 75 AD2d 613, 427 NYS2d 63 (2d Dept 1980). This factor has thus not been met.

Finally, it must be determined whether the proposed claim appears meritorious. Defendant argues that claimant's fall occurred during a storm in progress and cites various cases for the proposition that a landowner has a reasonable time in which to address a snow or ice condition subsequent to the cessation of the storm. Claimant, for his part, maintains that it had stopped snowing at 11:00 p.m. the night before his accident. In any event, I find 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."

Accordingly, having reviewed the parties' submissions[4], IT IS ORDERED that motion no. M-68796 be granted and that within forty-five (45) days of the filing of this Decision and Order, claimant shall serve and file his claim and otherwise comply with §§11 and 11-a of the Court of Claims Act. For his claim, claimant shall use the document annexed to his moving papers as exhibit A, entitling it "Claim" instead of "Notice of Intention," and naming only the City University of New York as defendant.

November 19, 2004
New York, New York

Judge of the Court of Claims

  1. [1]Claimant has submitted both a proposed notice of intention and a proposed claim. See exhibits A and B to claimant's moving papers. The exhibit A proposed notice of intention is more detailed, and it will thus be considered the proposed claim on this motion rather than exhibit B.
  2. [2]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).
  3. [3]Defendant has annexed the incident report to its opposition papers as exhibit A. Such does not contain claimant's signature. However, it is unclear whether exhibit A is the complete incident report as it contains no description of the incident or even a section for such a description to be inserted.
  4. [4]The Court reviewed: claimant's notice of motion with affirmation in support, petition and exhibits A-C; defendant's affirmation in opposition with exhibits A-C; and claimant's reply affirmation with exhibit A.