In the underlying claim here, it is alleged that on October 11, 2002, Asha
Samad-Matias slipped and fell on an accumulation of water in the vestibule of
the North Academic Center Building of the City College of New York in Manhattan.
Motion no. M-69346 is the Court's order to show cause why the claim should not
be dismissed for failing to comply with the service requirements of §11 of
the Court of Claims Act (the "Act"), and cross-motion no. CM-69594 is
defendant's motion to dismiss on the same basis. Motion no. M-69529 is
claimants' motion for permission to file and serve a late claim pursuant to
§10.6 of the Act.
Pursuant to §§10.3 and 11 of the Act, a claim such as this one must
be filed with the Clerk of the Court and served upon both the Attorney General
and the City University of New York within 90 days of accrual. Alternatively, a
notice of intention may be served on the Attorney General and City University
within such 90 day period, after which the claim must be served on such entities
and filed with the Clerk of the Court within two years of accrual.
In this case, on December 17, 2002 – within 90 days of accrual –
claimants served the Attorney General with a document entitled "Notice of
Intention to Make a Claim," listing the venue as the Court of Claims; such was
not served on the City University. On December 19, 2002 – again within 90
days of accrual – claimants served the City University with a document
entitled "Notice of Claim against the City of New York," which named the City
University, the City of New York and its Board of Education as
Such did not state the venue and
was not served upon the State of New York. Neither of these documents was filed
with the Clerk of the Court within 90 days of accrual, and thus cannot be
construed as claims.
Assuming that the foregoing service constitutes proper service of a notice of
intention under §§10.3 and 11 of the Act, claimants were then required
to file and serve their claim within two years of accrual. Their claim was
filed within such period, on February 13, 2004, and was served on the Attorney
General within such time period on November 21, 2003 (albeit in a slightly
different format than that filed with the Clerk). However, it is undisputed
that such claim has not been served on the City University of New York, as
required by §§10.3 and 11 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
In short, this Court lacks jurisdiction over claim no. 108899 because of
claimants' failure to serve it upon the City University of New York.
Accordingly, claimants' motion for permission to file a late claim must be
addressed. In order to determine such a motion, six factors enumerated in the
Act must be considered: whether (1) defendant had notice of the essential facts
constituting the claim; (2) defendant had an opportunity to investigate the
circumstances underlying the claim; (3) defendant was substantially prejudiced;
(4) claimant has any other available remedy; (5) the delay was excusable and (6)
the claim appears to be meritorious. The factors are not necessarily
exhaustive, nor is the presence or absence of any particular factor
As to the first three factors, an incident report was prepared on the date of
Ms. Samad-Matias' accident and, as set forth above, within 90 days thereof, the
State was served with a Notice of Intention and the City University with a
"Notice of Claim." Defendant makes no argument with regard to these three
factors, and I find that they have been satisfied.
As to excuse, claimants state that they were unaware that the City University
need be served and were also unaware that the City University could not be sued
in Supreme Court. Such is not an adequate excuse for the purposes of the Act.
See, e.g., Matter of E.K. v State of New York, 235 AD2d 540, 652
NYS2d 759 (2d Dept 1997), lv denied 89 NY2d 815, 659 NYS2d 856 (1997).
As to an alternate remedy, as set forth below, it appears that claimants have a
remedy under the Workers' Compensation Law, but the benefits thereunder are
statutorily limited and do not compensate for pain and suffering. See Workers'
Compensation Law §15.
Finally, it must be determined whether the proposed claim appears meritorious.
Defendant argues that according to the incident report, it was raining at the
time of the accident, and that liability may not be premised solely upon water
tracked in by the public on a rainy day. Defendant also argues that claimants'
own photographs show mats present and a "caution, wet floor" sign. While the
foregoing issues would need to be addressed by claimants at trial, I do not find
that they preclude a finding of merit. However, a more fundamental issue
regarding merit must be addressed, i.e., whether claimants' sole remedy
is Workers' Compensation benefits. See §11 of the Workers' Compensation
In the incident report prepared on the date of Ms. Samad-Matias' fall, in the
section entitled "Complainant/Aided," the "Faculty" box is checked off. In
addition, a "New York State - Department of Labor Injury and Illness Incident
Report" indicates that her title is "lecturer" and that she was injured at 6:00
p.m., while returning from a meeting in the "Admin. Bldg" and going to another
meeting in the building at issue, after having begun work at 3:30 p.m.
Similarly, a "State of New York - Workers' Compensation Board - Employer's
Report of Work-Related Accident/Occupational Disease" report lists Ms.
Samad-Matias as a lecturer, and states that "[e]mployee slipped & fell on
wet NAC vestibule flooring."
As set forth above, the documents submitted in connection with this motion
indicate that Ms. Samad-Matias was a City University employee at the time of her
fall, and to that end, defendant alleges, on information and belief, that she in
fact received Workers' Compensation benefits in connection with her accident.
See ¶15 of the January 12, 2005 affirmation of Ellen Matowik and exhibit C
thereto. In their opposition papers, claimants have not attempted to
substantively refute these allegations. See ¶¶20-23 of the February
11, 2005 affirmation of Harlan A. Platz.
In view of the foregoing, I am constrained to find that claimants fail to meet
the standard set forth in Matter of Santana v New York State Thruway
Authority, 92 Misc 2d 1, 11, 399 NYS2d 395, 402-03 (Ct Cl 1977): (i) the
claim "must not be patently groundless, frivolous, or legally defective" and
(ii) upon consideration of the entire record, including the proposed claim and
any exhibits or affidavits, "there is reasonable cause to believe that a valid
cause of action exists."
Accordingly, having reviewed the parties'
, IT IS ORDERED that motion no.
M-69346 and cross-motion no. CM-69594 be granted and claim no. 108899 be
dismissed. IT IS FURTHER ORDERED that motion no. M-69529 be denied.