New York State Court of Claims

New York State Court of Claims

NASH v. THE CITY UNIVERSITY OF NEW YORK, #2004-016-075, Claim No. None, Motion No. M-68880


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:
Robert J. Barsch, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Grace A. Brannigan, Esq., AAG
Third-party defendant's attorney:

Signature date:
December 2, 2004
New York

Official citation:

Appellate results:

See also (multicaptioned case)


This is the motion of Luke Nash for permission to file a late claim pursuant to §10.6 of the Court of Claims Act (the "Act"). In his proposed claim, it is alleged that Mr. Nash was refused a job as a peace officer at the City University of New York following a psychological examination which was required during the application process. According to claimant, the exam was conducted by a person not licensed to practice psychology in the State of New York and during the course of a subsequent "Telephone Appeal," he was told by a doctor that "You have no rights when you go for a job! You're crazy and you're not getting the job!" Mr. Nash describes his claim as one for "unlawful disability discrimination . . . in denying Claimant employment based upon a disability or perceived disability." See ¶¶7 and 11 of the proposed claim. Ordinarily, in determining a motion for permission to file a late claim, 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.

Here, however, a more fundamental issue must be addressed, i.e., whether this Court has subject matter jurisdiction over the proposed claim. Determinations of State administrative agencies may not be reviewed by the Court of Claims but must instead be challenged pursuant to CPLR Article 78 in Supreme Court. See, e.g., Rosenfeld v State of New York, Ct Cl dated August 2, 2002 (unreported, claim no. 105659, motion no. M-65262, cross-motion no. CM-65463, Ruderman, J., UID #2002-010-044[1]), in which it was held that where claimant alleged he had been discriminated against when applying for a Court Assistant position, "the agency's determination must first be challenged administratively and then by way of an article 78 proceeding in Supreme Court . . ."

For the foregoing reasons, having reviewed the submissions,[2] IT IS ORDERED that motion no. M-68880 be denied.

December 2, 2004
New York, New York

Judge of the Court of Claims

  1. [1]This and other decisions of the Court of Claims may be found on the Court's website:
  2. [2]The following were reviewed: claimant's notice of motion, affirmation in support with exhibits A-C, affidavit in support with exhibit A, the proposed claim; and defendant's affirmation in opposition with exhibits A and B.