New York State Court of Claims

New York State Court of Claims

MORALES v. CITY UNIVERSITY OF NEW YORK, #2006-014-514, Claim No. 111276, Motion No. M-70965


Application for late claim granted.

Case Information

1 1.The Court has amended the caption to include only the proper defendant.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The Court has amended the caption to include only the proper defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant’s attorney:
Baram & KaiserBy Steven S. Kaiser
Defendant’s attorney:
Eliot Spitzer, Attorney GeneralBy Ellen Matowik, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
August 3, 2006
New York

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read on claimant’s application for permission to file a late claim: Notice of Motion, Affirmation, Affidavit and Exhibits annexed; Affirmation in Opposition; Reply Affirmation; Sur-Reply Affirmation.

Claimant seeks permission to file a late claim alleging that, while she was a student at the New York City College of Technology, one of the defendant’s senior colleges, she was injured due to the defendant’s negligence in supervising a laboratory experiment during which boiling water was spilled on her by another student.

Claimant’s application was filed within the relevant statute of limitations, and so the Court has jurisdiction to grant relief under Court of Claims Act §10(6), and has considered the factors listed therein (see Bay Terrace Cooperative Section IV, Inc. v New York State Employees’ Retirement System Policemen’s and Firemen’s Retirement System, 55 NY2d 979, 981).

Defendant opposes the application on the grounds that the delay is not excusable, the proposed claim does not contain an “adequate description of the accident,” and that claimant has not demonstrated that the claim appears meritorious. Defendant does not oppose this application on the basis of the statutory factors of notice, opportunity to investigate, or prejudice. Those factors are therefore presumed to weigh in claimant’s favor (see Calzada v State of New York, 121 AD2d 988; Cole v State of New York, 64 AD2d 1023, 1024).

With respect to the existence of a valid excuse for the failure to timely serve and file a claim, claimant’s attorney was apparently misled to the conclusion that the proper defendant was the City of New York and therefore initially sued that entity. The delay is not excusable.

The claim[2] alleges that the incident occurred “at New York City College of Technology, 300 Jay Street, Brooklyn, New York, in the Pearl Building, Room 413.” Paragraph 3 of the claim alleges that the defendant was “negligent, careless and reckless in their ownership, operation, security, maintenance and control of the aforesaid school. Specifically, on the above date and time, the claimant was in a laboratory performing an experiment. Several other students joined her group thus constituting an excessive and dangerous number. One student who was unsupervised, and not properly instructed, spilled a beaker of boiling water onto the claimant’s legs. The students were not provided proper lab equipment or safety equipment, and furthermore, the class had received no instruction, neither written nor oral, in proper lab procedures. The instructor was not paying attention, . . .”

The foregoing description satisfies the requirements of Court of Claims Act §11(b). The “guiding principle informing section 11(b)” is whether the pleading is sufficiently definite “‘to enable the State . . . to investigate the claim[s] promptly and to ascertain its liability under the circumstances’” (Lepkowski v State of New York, 1 NY3d 201, 207, quoting Heisler v State of New York, 78 AD2d 767; see also Morris v State of New York, 27 AD3d 282, Kolnacki v State of New York, 28 AD3d 1176). This claim satisfies that standard. The defendant has not suggested that the City University of New York has been unable to investigate the circumstances underlying the claim since it was first provided with the above description of the incident, by service of a Notice of Intention to File Claim (Exhibit E to claimant’s submission) on July 22, 2005, a little more than four months after the incident. It is well settled in the jurisprudence of the Court of Claims that the standard by which the sufficiency of a claim is measured requires that the “defendant must make some effort to investigate based upon the information in the pleadings.” (Kerr v State of New York, Court of Claims, Read, P.J., October 2, 2002, Claim No. 105574, Motion No. M-65237; see also Cannon v State of New York, 163 Misc 2d 623).

The gravamen of the defendant’s argument that the claimant has not demonstrated the appearance of merit is found in paragraph 14 of the Affirmation in Opposition, in which it is argued that this was “clearly an accident for [sic] which no level of supervision could have prevented.” While that may constitute a defense at trial, it does not, at this stage in the proceeding, negate the appearance of merit of the claim. “[I]t is well settled that although schools are not insurers of the safety of their students, ‘[s]chools are under a duty to adequately supervise the students in their charge and they will be held liable for foreseeable injuries proximately related to the absence of adequate supervision’ (Mirand v City of New York, 84 NY2d 44, 49). The question of whether certain school behavior was reasonable and a proximate cause of the injury are generally questions of fact [citation omitted]” (Vonungern v Morris Central School, 240 AD2d 926).

The defendant suggests that the claimant may have another available remedy, against the student who spilled the boiling water.

Having considered the relevant statutory factors, the application is granted. It is, therefore,

ORDERED, that claimant’s application for permission to file a late claim against the City University of New York is granted; Claim No. 111276, which was previously served and filed on August 22, 2005 is hereby deemed filed as of the date of this Order[3] (Jomarron v State of New York, 23 AD3d 527); the Verified Answer previously served by the defendant shall serve as the answer required by §206.7(a) of the Uniform Rules for the Court of Claims. The parties should proceed with discovery.

August 3, 2006
New York, New York

Judge of the Court of Claims

[2].The Court has considered the claim which was served and filed, Claim No. 111276, as the proposed claim.
[3].The defendant has not moved to dismiss the claim.