New York State Court of Claims

New York State Court of Claims

FRASER v. THE CITY UNIVERSITY OF NEW YORK, #2004-030-927, Claim No. None, Motion No. M-68505


Synopsis



Case Information

UID:
2004-030-927
Claimant(s):
DAVID FRASER
Claimant short name:
FRASER
Footnote (claimant name) :

Defendant(s):
THE CITY UNIVERSITY OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
None
Motion number(s):
M-68505
Cross-motion number(s):

Judge:
THOMAS H. SCUCCIMARRA
Claimant's attorney:
Vitarelli, DeSorbo & Loiacono, P.C.by Jonathan R. Vitarelli, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney Generalby Grace A. Brannigan, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
September 8, 2004
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant seeks permission to file a late claim arising out of a January 29, 2003 incident at John Jay College of Criminal Justice in which he allegedly fell in a hole in a garage on or near the college's premises, apparently while engaged in some sort of construction or repair project.

Court of Claims Act section 10(6) grants the court the discretion to allow the filing of a claim beyond the otherwise-applicable 90-day period upon consideration of all of the relevant factors, including whether claimant's delay was excusable, whether defendant had timely notice and the opportunity to investigate the facts of the proposed claim, whether the defendant would suffer substantial prejudice from late filing, whether the proposed claim appears to be meritorious and whether claimant has an alternate remedy.

The papers before the court do not include anything from the claimant. There is no proposed claim, as section 10(6) requires, and the application is supported solely by the (undated) affirmation of claimant's counsel, who is without personal knowledge of the subject events.[1] It is not possible to discern what happened on the date in question, much less identify why claimant believes that he has a meritorious cause of action against the City University of New York, other than the mere fact that he was injured in a garage located at or in front of the John Jay College of Criminal Justice. No facts are alleged upon which the court could evaluate whether there is apparent merit to a claim of CUNY liability for whatever happened, whether CUNY had timely notice of the alleged incident and the opportunity to investigate, or whether CUNY would suffer prejudice if late filing were to be allowed.

The only two statutory factors that are addressed in the submitted papers weigh against granting the motion. Claimant's delay in timely filing a claim was occasioned by his ignorance of the 90-day period (Court of Claims Act section 10[3]) – not considered "excusable" within the meaning of the statute. And, claimant has an action pending in Supreme Court against DASNY, which is apparently the owner of the premises and/or a contractor on the project.

Accordingly, the motion is denied.


September 8, 2004
White Plains, New York

HON. THOMAS H. SCUCCIMARRA
Judge of the Court of Claims




[1]Indeed, in an April 5, 2004 affirmation in support of a Supreme Court application for permission to serve a late notice of claim against the Dormitory Authority of the State of New York (DASNY), the City of New York and John Jay College of Criminal Justice, counsel stated that no person from his office had ever met the claimant.