JAMES v. THE STATE OF NEW YORK and CITY COLLEGE, A DIVISION OF CITY UNIVERSITY
OF NEW YORK, #2004-030-907, Claim No. 107968, Motion Nos. M-67711, CM-67805,
Footnote (claimant name)
THE STATE OF NEW YORK and CITY COLLEGE, A DIVISION OF CITY UNIVERSITY OF NEW YORK
Footnote (defendant name)
CM-67805, CM-67816, CM-67913
THOMAS H. SCUCCIMARRA
Ziegler & Robinsonby George P. Ziegler, Esq.
Eliot Spitzer, Attorney General
by Ellen S. Mendelson, Assistant Attorney General
(for the State of New York)
Law Offices of Michael E. Pressman
by Michael S. Livow, Esq.(for the City University of New York)
March 9, 2004
See also (multicaptioned
The court read and considered the following papers on the instant motions and
motions: Notice of Motion, Affirmation and Exhibit; Notice of Cross-Motion
Affirmation and Exhibits; Notice of Cross-Motion (67816), affirmation and
Exhibits; Notice of
Cross-Motion (67913) and Affirmation.
The claim alleges as follows:
The claim arose on April 7, 2003 at approximately 12:30 p.m. Claimant was a
pedestrian struck by a 2002 Dodge Van with New York State registration number
K39858 which was owned by the City College of New York and operated by Anthony
Colon. The occurrence happened at the intersection of West 140th Street and
Amsterdam Avenue, New York, New York.
The answer, which was interposed by the Attorney General on behalf of both
defendants prior to the City of New York (CUNY) retaining independent counsel,
contains, inter alia, the following affirmative defenses, which claimant
moves to strike:
First: that the State of New York is not a proper party.
Second: that CUNY must be named as a party and served.
Fifth: that the court lacks jurisdiction over the claim because claimant failed
to timely serve CUNY with a claim or notice of intention.
Sixth: that the claim fails to comply with the Court of Claims Act by failing
to include any "particularization" of CUNY's conduct as regards the subject
Seventh: that the claim fails to comply with the Court of Claims Act by
failing to include any "particularization" of the State's conduct as regards the
Ninth: that claimant was injured in the course of her employment and has
his/her sole remedy under the Workers' Compensation Law.
With respect to the Fifth affirmative defense, claimant notes that while the
90-day period for serving and filing the claim (Court of Claims Act section
10) expired on July 5, 2003, that date fell on a Saturday and the personal
service of the claim on CUNY on Monday July 7, 2003 was therefore timely
(General Construction Law section 20). When this was pointed out, the Assistant
Attorney General agreed that the Fifth affirmative defense should be
As regards the First affirmative defense, the allegations of the claim give no
indication of any viable claim against the State of New York. Claimant is
incorrect in arguing that the State is a proper party since it operates and
controls CUNY and is vicariously liable for the torts of CUNY employees. To the
contrary, the State and CUNY are independent entities. The State does not
operate the CUNY facilities, CUNY does, and the State is not responsible for the
conduct of CUNY employees (see, Education Law section 6224). Thus,
the First affirmative defense is valid and, moreover, the State's cross-motion
to dismiss the claim must be, and hereby is, granted because the claim fails to
state a cause of action against the State.
The issue raised in the Second affirmative defense arises from the fact that,
although claimant served CUNY properly and timely, the claim that was filed with
the court on July 3, 2003 named only the State of New York as defendant and it
was not until July 23, 2003 that claimant filed a second copy of the claim,
which was identical to the first claim except for the addition of "City College,
a Division of City University of New York" as a defendant along with the State
of New York. CUNY argues that because the July 23, 2003 filing was more than 90
days following accrual, the claim should be dismissed because the Court of
Claims Act requires service and filing within the jurisdictional period and
here, although claimant effected timely service, it was not until after the
expiration of the period that a claim naming CUNY in the caption was filed with
Virtually the identical issue was considered in Martino v New York State
Thruway Auth., (154 Misc 2d 905), which involved a claim that should have
been asserted against the Thruway Authority but named only the State. The court
where the proper party defendant has been served with the relevant pleading, the
failure to properly identify the defendant is a procedural irregularity that may
be disregarded (Tomlinson Bros. v State of New York, 15 AD2d 692;
Schwartzberg v State of New York, 121 Misc 2d 1095, affd on opn
below 98 AD2d 902). The relevant test to be applied was set forth in
Matter of Great E. Mall v Condon (36 NY2d 544), viz., did the proper
defendant receive adequate notice of the commencement of the proceeding, and
would any substantial right of the defendant be prejudiced by disregarding the
failure to accurately identify it in the pleading?
Here, the first claim clearly and concisely set forth that claimant was seeking
damages for personal injuries arising from being struck by an automobile that
was owned by City College (see, VTL section 388), notwithstanding that
the caption only referred to the State of New York. Had the facts herein
paralleled those in Martino (i.e., had claimant not amended the caption
to include the reference to CUNY and simply served CUNY with the original
claim), under the standard articulated in Martino and the authorities
cited therein the omission of CUNY from the caption would not have created a
Claimant's argument here is even more compelling than in in Martino.
There, although the Thruway Authority had been served, the notice of intention
and the claim (which alleged that claimant was injured while working on the
Tappan Zee Bridge, part of the New York State Thruway) contained no allegations
against the Thruway Authority, only against the State. The court nevertheless
found no prejudice resulting from the mistaken identification of the defendant
in the pleadings because (1) the proper defendant had been served, and (2) the
documents clearly set forth the nature of the claim and the Thruway Authority
knew that it, not the State, was the proper party since it is the entity that
operated the Thruway. Here, the claim served on CUNY within the jurisdictional
period accurately identified it; it was only the copy filed with the court and
served on the Attorney General that contained the mistake (and even at that, the
first claim did properly reference City College in the body, it was only the
caption that was deficient). CUNY does not even attempt to argue that, under
these circumstances, it was prejudiced by the initial failure to include CUNY in
the caption (see Matter of Great E. Mall v Condon (36 NY2d 544, 548).
Accordingly, the failure to name CUNY in the caption of the first claim did not
create a jurisdictional infirmity but rather was merely a procedural
irregularity that may be disregarded and the Second affirmative defense is
stricken from the answer.
The Sixth affirmative defense challenges the sufficiency of the information
("particularization") set forth in the claim, against the statutory requirement
(Court of Claims Act section 11[b]) that a claim adequately set forth its
Although defendants have
identified many questions a claim must allegedly answer in order to adequately
state its "nature" as required by statute, they have failed to identify the
source for the contention that section 11(b) requires this sort of minute
detail. The "guiding principle" when evaluating a claim or notice of intention
against the requirements of section 11(b) is whether the document contained
sufficient information "to enable the State . . . to investigate the claim[s]
promptly and to ascertain its liability under the circumstances" (Lepkowski v
State of New York
, 1 NY3d 201, 207; quoting Heisler v State of New
, 78 AD2d 767). The allegations of the claim – that claimant, a
pedestrian, was struck by a 2002 Dodge van with registration number K39858, on
April 7, 2003 at about 12:30 p.m. at the corner of Amsterdam Avenue and West
140th Street, and that the van was operated by Anthony Colon and owned by City
College – meet this burden. While the claim does not actually state that
such was the result of Mr. Colon's negligence, such may be "reasonably inferred"
78 AD2d, 767, 768) The court finds that the claim
complies with section 11(b) and the Sixth affirmative defense is thus
The Seventh affirmative defense is stricken as moot in view of the dismissal of
the claim against the State for other grounds.
Finally, claimant has not presented any argument or evidence that would justify
striking the Ninth affirmative defense (workers' compensation) from the answer.
Contrary to claimant's contention, defendant need not present proof of the
validity of the defense simply because claimant has alleged, without any proof
whatsoever, that it is without merit. The burden of proof on a motion to strike
a defense is on the party that seeks the defense stricken. Of course, the
burden will be on the defendant to establish the defense, either at trial or on
a motion for summary judgment, but claimant cannot put the burden on defendant
to establish the defense at this point merely because her counsel asserts "upon
information and belief" that it does not apply.
Accordingly, claimant's motion is granted to the extent that the First, Second,
Fifth, Sixth and Seventh affirmative defenses are stricken from the answer and
is otherwise denied. The State of New York's cross-motion to dismiss the claim
asserted against it is granted. CUNY's motion to dismiss the claim is denied.
Claimant's cross-motion is granted to the extent that the caption is amended, to
the extent that such is necessary, to reflect "The City University of New York"
as the sole defendant and is otherwise denied.
March 9, 2004
Plains, New York
HON. THOMAS H. SCUCCIMARRA
Judge of the Court of
Defense counsel identifies the information
that is allegedly missing from the claim: "If claimant was a pedestrian, was she
crossing the intersection, standing on the side of the roadway waiting to cross
or was there a center median? Did the motor vehicle back into her? Neither is it
known what kind of traffic control devices were in use, whether there were
traffic lights or stop signs. Was claimant or defendant's vehicle in violation
of any of these devices? The claim also fails to state where in the
intersection the alleged incident took place. As already questioned above, did
the accident occur on the side of the road, in the middle of the intersection,
how many lanes does the roadway contain and in which lane did the accident
occur?" (Affirmation in support of CM-67816, par. 9).