New York State Court of Claims

New York State Court of Claims

HUDSON v. THE STATE OF NEW YORK, #2005-030-917, Claim No. None, Motion No. M-69758


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):

Claimant's attorney:
Saasto & Hirsch, Jeffrey Hirsch, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney Generalby Ellen Matowik, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
June 1, 2005
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


The court read and considered the following papers on claimant's motion for permission to file a late claim: Notice of Motion, Affirmation and Exhibits; Affirmation in Opposition and Exhibit; Reply Affirmation and Exhibits.

Claimant seeks permission to file a late claim, pursuant to Court of Claims Act §10(6), arising out of a December 2, 2003 incident in which claimant was allegedly injured in an elevator at Medgar Evers College, a senior college in the City University of New York system.

The papers before the court show that claimant served a notice of claim, pursuant to General Municipal Law §50-e, on CUNY and the City of New York on March 1, 2004, the City conducted a "50-h hearing" on May 6, 2004 and claimant commenced an action in an unspecified court on November 12, 2004. Claimant's counsel states that he was contacted by the Attorney General's office in February 2005 and advised that the subject claim was required to be brought in the Court of Claims. The instant motion ensued.[1]

Education Law §6224(4) provides:
Exclusive jurisdiction is hereby conferred upon the court of claims to hear, audit and determine the claims of any person against the city university of New York * * * (b) in connection with causes of action sounding in tort alleged to have been committed by a senior college of such university or any officer, agent, servant or employee of a senior college of such university in the course of his employment on behalf of such university, * * * in the same manner and to the extent provided by and subject to the provisions of the court of claims act, including time limitations, with respect to claims against the state, and to make awards and render judgments therefor.
Court of Claims Act §10(3) provides that a claim seeking damages for personal injuries must be served on the defendant and filed with the clerk of the court within 90 days after accrual of the claim, which was not done here. Court of Claims Act §10(6) grants the court the discretion to allow the service and filing of a late claim, upon consideration of all relevant factors, including whether claimant's delay was excusable, whether defendant had timely notice and the timely opportunity to investigate the relevant facts, whether defendant would suffer substantial prejudice arising from claimant's delay, whether the proposed claim appears meritorious and whether claimant has an alternate remedy.

Claimant's counsel alleges that the delay was excusable because he was "led to believe that the claim was being handled by City of New York on behalf of City University. They did not notify us immediately that the claim should be submitted to Court of Claims" (Attorney Affirmation, p 1). Counsel's argument is without merit.

"Unfamiliarity with the proper party to be sued or the statutory scheme governing same will not excuse a late filing in this Court. See, e.g. Matter of E.K. (Anonymous) v State of New York, 235 AD2d 540, 652 NYS2d 759 (2d Dept 1997); Erca v State of New York, 51 AD2d 611, 378 NYS2d 328 (3d Dept 1976), affd mem 42 NY2d 854, 397 NYS2d 631 (1977)" (LaRocque v City University of New York, Ct Cl, Marin, J., unreported decision dated December 18, 2000, UID No. 2000-016-104; see also,
Royal Insurance Co. v State of New York, 149 Misc 2d 531
). Counsel's attempt to deflect the blame for the misguided attempt to bring an action against CUNY in a court without jurisdiction over that entity belies the fact that the relevant provisions of the Education Law are presumed to be public knowledge, at least among attorneys. It was not incumbent on opposing counsel to advise claimant how to properly proceed.

Whether a proposed claim appears to have merit is sometimes referred to as the most important of the factors set forth in §10(6); see e.g.
Wallace v State of New York, Ct Cl, Read, P. J., unreported decision dated June 27, 2000, UID No. 2000-001-030
With respect to the underlying merit of a proposed claim, a claimant need only establish that the proposed claim is not patently groundless, frivolous, or legally defective and that there is reasonable cause to believe that a valid cause of action exists (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1). On the other hand, for the Court to permit a defective claim to be filed, even if the other factors in Court of Claims Act § 10 (6) supported the granting of claimant's motion, would be meaningless and futile and could be considered an abuse of discretion (Savino v State of New York, 199 AD2d 254; Prusack v State of New York, 117 AD2d 729)" (id.).
The instant application is supported only by the affirmation of claimant's counsel, who is without knowledge of the relevant events, and a copy of the notice of claim that was initially served on the City and CUNY.[2] The notice of claim states the nature of claim as follows:
Negligence, carelessness, recklessness in the ownership, operation, maintenance, management, repair and control of elevator, which led to a dangerous and defective condition (par 2).
The notice goes on to describe the time, place and manner in which the claim arose:
On December 2, 2003 at approximately 11:00 am at Medger Evers College, Bklyn, NY, Bedford Avenue building in the front elevator on the 2nd floor elevator made a sudden drop from the 2nd floor to the 1st floor causing claimant to sustain injury (par 3).
These two quoted paragraphs constitute the entirety of the information provided to the court with respect to the apparent merit of the claim. On the other hand, defendant has provided a copy of the incident report that was completed by a college safety officer on the date of the incident. The officer wrote that he responded to a call about a woman inside an elevator, maintained verbal contact with the woman, and that when he and another officer:
got the doors open, we discovered that the female inside had accidentally moved the run/stop switch causing the elevator to stop and sound the alarm. We were able to get the switch back in normal position, and the female now known to me as Ms. Dorothy Hudson was able to exit the elevator without any further condition (Exhibit A to Affirmation in Opposition).
Although claimant's counsel submitted a reply affirmation, the account of the incident set forth in the officer's report was not questioned, or even mentioned.

"Unlike a party who has timely filed a claim, one seeking permission to file a late claim has the heavier burden of demonstrating that the proposed claim appears to be meritorious (See, Nyberg v State of New York, 154 Misc 2d 199). Generally a proposed claim meets this standard if it is not patently groundless, frivolous, or legally defective, and upon consideration of the entire record there is cause to believe that a valid cause of action exists (Matter of Santana v New York State Thruway Authority, 92 Misc 2d 1, 11)" (Livernois v State of New York, Ct Cl, Fitzpatrick, J. unreported decision dated November 15, 2002, UID No. 2002-018-183). Here, the only probative submission indicates that the incident in the elevator was caused by the claimant, not by any negligence on the part of CUNY or by any defective or dangerous condition of which CUNY had notice. Indeed, claimant's papers do not indicate what the allegedly dangerous condition was or how it was the result of negligence on the part of CUNY. There is absolutely no basis in the record before the court upon which to conclude that a valid cause of action exists.

With respect to notice, opportunity to investigate and lack of prejudice, the service of the notice of claim upon CUNY within 90 days of the accident would, superficially, indicate that such factors should weigh in favor of the claimant. On the other hand, the complete lack of any indication in that document of what the allegedly dangerous condition was, combined with the fact that the incident report does not indicate that there was any negligence or any dangerous condition, but does indicate that the incident was caused by the claimant, leads to the opposite conclusion.

On the question of a possible alternate remedy, both parties allude to the possibility of an action against the elevator company. The court has no idea whether such an action would be viable, as the court cannot infer the nature of claimant's allegations with respect to the condition of the elevator.

On balance, with the complete lack of any indication of a viable claim against CUNY being the deciding factor, the court must, and hereby does, deny the motion.

June 1, 2005
White Plains, New York

Judge of the Court of Claims

[1]Although claimant mistakenly brought this motion against the State of New York, instead of against CUNY, the court will consider the motion on the merits, as if the proper defendant had been named, since CUNY's counsel (i.e., the Attorney General) was properly served with the motion papers and the opposition papers fully address all of the relevant factors.
[2]The proposed claim on this motion consists of a copy of the original notice of claim, with the word "City" whited-out and the word "State" handwritten in.