New York State Court of Claims

New York State Court of Claims

NIEVES v. THE CITY UNIVERSITY OF NEW YORK, #2005-016-030, Claim No. 110426, Motion No. M-69747


Synopsis


Claim filed beyond date directed in order on prior late claim motion was found to not be jurisdictionally defective and thus was deemed timely filed

Case Information

UID:
2005-016-030
Claimant(s):
EDDIE NIEVES
Claimant short name:
NIEVES
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):
110426
Motion number(s):
M-69747
Cross-motion number(s):

Judge:
Alan C. Marin
Claimant's attorney:
Bisogno & MeyersonBy: George D. Silva, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Ellen Matowik, Esq., AAG
Third-party defendant's attorney:

Signature date:
April 7, 2005
City:
New York
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)

.
Decision

This is claimant's motion for an order granting him "an extension of time to comply with this Court's prior order and deem the Claim filed with the Clerk of the Court of Claims timely filed nunc pro tunc and/or leave to file a Claim with the Clerk of the Court of Claims . . ." In the underlying claim, it is alleged that claimant injured himself when he slipped and fell on January 28, 2004 while working as a security guard for "Securitas/Security Services" at Queens College. Such claim was the subject of a motion for permission to file a late claim, which was granted in a Decision and Order filed December 1, 2004, which directed that the claim be served and filed within 45 days, i.e., by January 17, 2005. The claim was apparently served by such date, but was not filed until January 31, 2005.

While it is thus undisputed that the claim was not filed within the time directed in the prior Decision and Order, such is not a jurisdictional defect. See, e.g., Shimmerlik v City University of New York, 142 Misc 2d 118, 536 NYS2d 380 (Ct Cl 1988), affd 154 AD2d 959, 546 NYS2d 506 (1st Dept. 1989); Kerai v State of New York, Ct Cl filed June 8, 2000 (unreported, claim no. 93387, motion nos. M-60851 and CM-61020, Marin, J.)[1]. Nor has defendant identified any prejudice from which it would suffer should this motion be granted.

In view of the foregoing, having reviewed the submissions[2], IT IS ORDERED that motion no. M-69747 be granted to the extent that claim no. 110426 be deemed timely filed pursuant to this Court's Decision and Order filed December 1, 2004.


April 7, 2005
New York, New York

HON. ALAN C. MARIN
Judge of the Court of Claims




  1. [1]See also Griffin v John Jay College, 266 AD2d 16, 697 NYS2d 278 (1st Dept 1999).
  2. [2]The Court reviewed: claimant's notice of motion with affirmation in support and exhibits A through G; defendant's affirmation in opposition with exhibit A; and claimant's reply affirmation.