This is the motion of Tamara S. Isaac for permission to file a late claim
pursuant to §10.6 of the Court of Claims Act (the "Act"). In her proposed
claim, Ms. Isaac alleges that Brooklyn College failed to give her credit toward
her graduate degree for a York College course that had "previously been
approved" by a Brooklyn College professor. In order to determine this 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.
The first three factors – whether defendant had notice of the essential
facts, had an opportunity to investigate or would be prejudiced by the granting
of this motion are intertwined and may be considered together. See Brewer v
State of New York, 176 Misc 2d 337, 342, 672 NYS2d 650, 655 (Ct Cl 1998).
In this case, claimant's papers contain numerous documents -- sent or received
by the college -- relating to her efforts to obtain credit for the course in
question and defendant has identified no prejudice. I conclude that these
factors have been satisfied.
As to an alternate remedy, a claim for damages against a senior college of the
City University of New York lies solely in this Court. Education Law
§6224.4. As to excuse, claimant has provided no explanation for her
failure to timely commence an action and thus this factor has not been
Finally, it must be determined whether the proposed claim appears meritorious.
Essentially, claimant contends that during a meeting with Brooklyn College
Professor Wen Song Hwu in the "late summer/early fall 2003," the professor
"approved" her substitution of a York College
for a Brooklyn College
Subsequently, claimant was not given
credit for the York College course, as Brooklyn College took the position that
it was "unable to comply with your request to have an undergraduate pass/fail
course from York College counted toward your graduate degree in Education. Your
case was considered in some detail by the Faculty Council Committee . . .
However, after broad deliberation and consultation, it has been determined that
this is not a Faculty Council matter, as our graduate requirements are set by
the New York State Department of Education (SED). SED does not permit
undergraduate courses of any kind to be used to satisfy graduate degree
requirements . . ." See the April 12, 2005 letter to claimant from Louise
Hainline of Brooklyn College, annexed to claimant's moving papers. Aside from
her general allegation of Professor Hwu's approval, claimant has submitted
nothing to suggest that the College gave any such approval. Nor has she
submitted anything to support her contention that the York College course was
"represented" as a graduate level course.
Overall, I find that claimant fails 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." See also
Prusack v State of New York, 117 AD2d 729, 498 NYS2d 455 (2d Dept
Accordingly, having reviewed the parties'
IT IS ORDERED that motion no.
M-70330 be denied.