New York State Court of Claims

New York State Court of Claims

VELASCO v. THE STATE OF NEW YORK, #2005-016-011, Claim No. 103745, Motion Nos. M-69066, CM-69217, CM-69316


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):
CM-69217, CM-69316
Alan C. Marin
Claimant's attorney:
Nora Constance Marino, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Grace A. Brannigan, Esq., AAG and Susan J. Pogoda, Esq., AAG
Third-party defendant's attorney:

Signature date:
February 17, 2005
New York

Official citation:

Appellate results:

See also (multicaptioned case)


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 defense[1] or, in the alternative, permitting her to serve and file a late claim pursuant to §10.6 of the Court of Claims Act (the "Act").[2] 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 accident.[3] 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 1993).

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 argument.

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 York, 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 #2003-015-340).[4] 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' submissions[5], 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.

February 17, 2005
New York, New York

Judge of the Court of Claims

  1. [1]Such defense states as follows: "The Court lacks jurisdiction over the claim due to claimant's failure to timely serve the claim or any notice of intention upon the City University of New York, in accordance with Court of Claims Act Sections 10 and 11 and Education Law Section 6224, which requires service and filing of the claim or service of the notice of intention upon the City University of New York within ninety days of the accrual date."
  2. [2]Claimant's request for such alternate relief includes a reference to amending the caption to include The City University of New York as a defendant. If her late claim motion were granted, no need for an amendment would be required, as filing and service of a new claim would be directed. If she seeks to amend her current claim to name the City University, such relief is not available. See, e.g., Barry v State of New York, Ct Cl dated February 19, 2004 (unreported, claim no. 107520, motion nos. M-67526 and CM-67614, Marin, J., UID #2004-016-006). Such decision and other decisions of the Court of Claims may be found on the Court's website:
  3. [3]The proof submitted by the parties is more favorable to concluding that the City University was not in fact served with the notice of intention. However, in view of the Court's other findings in this Decision and Order, such issue need not be decided (nor need the issue of whether an April 27, 2000 letter received by the City University can be treated as a notice of intention).
  4. [4]Claimant has supplied no authority to support her request that the court reserve decision on defendant's motion to dismiss so she may initiate a declaratory judgment action in Supreme Court with regard to her constitutional challenge.
  5. [5]The following were reviewed: claimant's notice of motion no. M-69066 with affirmation in support and exhibits 1 through 9; defendant's notice of cross-motion no. CM-69217 with attached affirmation and exhibits A through C; claimant's notice of cross-motion no. CM-69316 with attached affirmation and exhibit 1; defendant's "Affirmation in Opposition to Claimant's Cross-Motion and Reply Affirmation and in Further Support of Defendant's Cross-Motion"; and claimant's "Attorney Affirmation in Reply."