In her underlying claim, Marcela Velasco alleges that on February 5, 2000, she
slipped and fell on a stairway at Queens College. In motion no. M-69066, Ms.
Velasco seeks an order striking defendant's fifth affirmative
or, in the alternative, permitting her
to serve and file a late claim pursuant to §10.6 of the Court of Claims Act
In cross-motion no. CM-69217,
defendant moves to dismiss the claim on the ground that this Court lacks
jurisdiction because claimant failed to serve the City University with either a
notice of intention or claim within ninety days of accrual of her claim. In
cross-motion no. CM-69316, claimant moves for an order declaring §6224.1 of
the Education Law and §11.a.(ii) of the Act unconstitutional. There is a
dispute between the parties as to whether a notice of intention was served on
the City University of New York within 90 days of claimant's
But it is undisputed that the claim
itself, which was filed on January 29, 2001 and served on the Attorney General
on January 19, 2001, was never served on the City University, as is required by
§11.a.(ii) of the Act.
"It is well established that compliance with sections 10 and 11 of the Court of
Claims Act pertaining to the timeliness of filing and service requirements
respecting claims and notices of intention to file claims constitutes a
jurisdictional prerequisite to the institution and maintenance of a claim
against the State, and accordingly, must be strictly construed . . ." Byrne
v State of New York, 104 AD2d 782, 783, 480 NYS2d 225, 227 (2d Dept 1984),
lv denied, 64 NY2d 607, 488 NYS2d 1023 (1985) (citations omitted). See
also Mallory v State of New York, 196 AD2d 925, 601 NYS2d 972 (3d Dept
Section 11.c of the Act provides that any defense based upon failure to comply
with the timing or manner of service must be raised with particularity in either
the answer or in a motion to dismiss, and if such is not done, the defense is
waived. While claimant does not specifically refer to §11.c or waiver
thereunder, she does argue that the fifth affirmative defense should be stricken
as "vague and unclear" because it states that claimant failed to timely serve
the claim "or" notice of intention, rather than using the conjunction
"and." Such argument is unavailing, especially since claimant does not dispute
that she failed to serve the claim on the City University, and the fifth
affirmative defense refers her to §11 of the Act, which explicitly lays out
the service requirements when the City University is the defendant.
Claimant also argues that since she served a summons and complaint on the City
University in an action in Supreme Court (which was dismissed for lack of
jurisdiction), such service should be deemed sufficient for the purposes of
§11.a of the Act. Aside from the fact that such section specifically
requires filing of a claim - - not a summons and complaint - - with the Clerk of
the Court of Claims, and service of a copy on the City University and the
Attorney General, claimant has provided no legal authority in support of such
With regard to Velasco's motion for permission to file a late claim, §10.6
of the Act provides that such relief may not be granted if the statute of
limitations on the underlying cause of action has run. The statute of
limitations period in this case expired on February 5, 2003 (see CPLR
§214), well before claimant served and filed motion no. M-69066 in or about
September of 2004. In that regard, claimant argues that she was under a legal
disability because she went abroad in November of 2001 and was unable to return
to the United States until April of 2004 because of problems with immigration.
See claimant's August 24, 2004 affidavit, annexed as exhibit 9 to her papers on
motion no. M-69066. She has provided no applicable legal authority to support
such contention. In addition, counsel had already been retained in this case
prior to claimant's departure.
Finally, claimant argues that the Court should declare unconstitutional the
service requirements of §11.a.(ii) of the Act and §6224.1 of the
Education Law. The appropriate venue for such relief is a declaratory judgment
action in Supreme Court. See, e.g.
, Chapman v State of New
193 Misc 2d 216, 748 NYS2d 465 (Ct Cl 2002); Chase Manhattan
v State of New York
, Ct Cl dated July 28, 2003 (unreported, claim no.
103886, motion nos. M-66471 and M-66458, Collins, J., UID
In any event, claimant's
arguments are premised on the application of subdivision 1 of §6224 of the
Education Law. However, such section applies to community colleges of the City
University of New York, not to the senior colleges such as Queens College, which
are fully funded by the State of New York. The applicable section here would be
subdivision 4 of §6224.
In view of the foregoing, having reviewed the parties'
, IT IS ORDERED that motion no.
M-69066 and cross-motion no. CM-69316 be denied. IT IS FURTHER ORDERED that
cross-motion no. CM-69217 be granted and claim no. 103745 be dismissed.