New York State Court of Claims

New York State Court of Claims

ATKINSON v. CITY UNIVERSITY OF NEW YORK, #2004-030-931, Claim No. None, Motion No. M-68623


Motion for permission to late file is granted.

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):

Claimant's attorney:
Bornstein & Emanuelby Kenneth Bornstein, Esq.
Defendant's attorney:

Eliot Spitzer, Attorney Generalby Grace A. Brannigan, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
October 12, 2004
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


The court read and considered the following papers on claimant's motion for permission to file a late claim: Notice of Motion, Affirmation and Exhibits; Affirmation in Opposition and Exhibits.

Claimant seeks permission to file a claim, pursuant to Court of Claims Act §10(6), arising out of a February 19, 2003 slip and fall incident at York College in Queens in which she allegedly suffered injuries to her back, right leg and knee. Defendant opposes the application on the grounds that claimant's delay in not timely proceeding in this court (i.e., within 90 days of accrual; Court of Claims Act §10[3])) was not excusable and that the proposed claim does not appear to be meritorious. Defendant also alleges that the description of claimant's alleged injuries in the proposed claim is so "vague" so as to fall short of the requirements of Court of Claims Act §11(b) (a "claim shall state . . . the items of damage or injuries claimed to have been sustained") and Uniform Rules for the Court of Claims §206.6 ("[t]here shall be included in each claim, or attached thereto, a schedule showing in detail each item of damage claimed and the amount of such item").

Court of Claims Act §10(6) grants the court the discretion to allow the late filing of a claim, upon consideration of all relevant factors, including whether claimant's delay was excusable, whether defendant had notice of the facts and the opportunity to investigate within the statutory period (90 days), whether defendant would suffer substantial prejudice should late filing be allowed, whether the proposed claim appears meritorious and whether claimant has an alternate remedy.

Defendant's failure to address four of the six statutory factors warrants the inference that they weigh in favor of granting the application (Cole v State of New York, 64 AD2d 1023). Moreover, the papers indicate that a CUNY safety officer responded to the scene of claimant's fall and filed a report and that claimant served a notice of claim[1] on CUNY within 90 days of the incident, thus providing timely notice and preventing any claim of prejudice arising from late filing.

Defendant is correct that counsel's mistake in the proper way to proceed (see fn. 1) cannot be deemed "excusable" within the meaning of the State.

With respect to the apparent merit of the proposed claim, claimant's burden is to show that it is not patently groundless, frivolous or legally defective and that there is reasonable cause to believe that a valid cause of action exists (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1). Despite the various factual and legal arguments advanced by defendant with respect to whether a dangerous condition existed, whether defendant had notice of such condition and whether claimant's own negligence was the cause of her fall, the court finds that the submitted papers satisfy claimant's burden as to apparent merit at this stage of the litigation.

Paragraph 4 of the proposed claim alleges that claimant "sustained severe and serious permanent personal injuries, including but not limited to injuries to her back, right leg and right knee. Damages are claimed . . . for conscious pain and suffering, physical and/or personal injuries and medical expenses" and paragraph 5 seeks relief in the amount of $1 million for such injuries. The court finds that this language complies with the requirements of the Court of Claims Act and the Uniform Rules for the Court of Claims, subject, of course, to further elaboration in a bill of particulars.

On balance, the court finds that the motion should be, and hereby is, granted. Claimant may serve and file her claim, pursuant to the relevant provisions of the Court of Claims Act and the Uniform Rules, within 45 days of the filing date hereof.

October 12, 2004
White Plains, New York

Judge of the Court of Claims

[1]Claimant was, mistakenly, attempting to proceed against CUNY under the procedures set forth in the General Municipal Law rather than those in the Court of Claims Act.