New York State Court of Claims

New York State Court of Claims

SAMAD-MATIAS v. THE STATE OF NEW YORK, #2005-016-039, Claim No. 108899, Motion Nos. M-69346, M-69529, CM-69594


Claim alleging slip and fall at City College of New York was dismissed as having not been served on the City University of New York; related late claim motion was denied.

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):
M-69346, M-69529
Cross-motion number(s):
Alan C. Marin
Claimant's attorney:
Fink & PlatzBy: Harlan A. Platz, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Ellen Matowik, Esq., AAG
Third-party defendant's attorney:

Signature date:
May 25, 2005
New York

Official citation:

Appellate results:

See also (multicaptioned case)


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 defendants.[1] 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 1993).

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 controlling.[2]

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 Law.

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' submissions[3], 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.

May 25, 2005
New York, New York
Judge of the Court of Claims

  1. [1]In their papers in opposition to defendant's cross-motion, claimants contend that this document should be construed as a notice of intention to file a claim and should be treated as a claim, presumably pursuant to §10.8 of the Act. Such relief was not sought in motion no. M-69529 and thus will not be addressed by the Court.
  2. [2]See Bay Terrace Coop. Section IV, Inc. v New York State Employees' Retirement Sys. Policemen's and Firemen's Retirement Sys., 55 NY2d 979, 449 NYS2d 185 (1982); Scarver v State of New York, 233 AD2d 858, 649 NYS2d 280 (4th Dept 1996).
  3. [3]The Court reviewed: the order to show cause on Motion No. M-69346; claimants' submission in response filed November 24, 2004; claimants' notice of motion no. M-69529 with affirmation in support and exhibits A through G; defendant's notice of cross-motion no. CM-69594 with affirmation in support and exhibits A through C; claimants' affirmation in opposition with exhibits A and B; and defendant's affirmation in reply with exhibit A.