New York State Court of Claims

New York State Court of Claims

CHINITZ v. THE STATE OF NEW YORK, #2006-028-511, Claim No. NONE, Motion No. M-71026


Claimant's motion for leave to file a late claim relative to alleged negligent supervision during cheerleading practice at Binghamton University is granted.

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:
McDONOUGH & ARTZ, P.C.BY: Katherine A. Gilfillan, Esq.
Defendant’s attorney:
BY: Joseph F. Romani, Esq.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
January 17, 2006

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read on Claimant's application for permission to file a late Claim pursuant to Court of Claims Act § 10 (6):

1. Notice of Petition and Petition for Leave to Serve Late Notice of Claim (sic) with annexed exhibits filed December 8, 2005;

2. Affidavit of Dana Chinitz sworn to November 28, 2005;

3. Affidavit of Katherine A. Gilfillan, Esq. sworn to November 29, 2005;

4. Proposed Notice of Claim (sic) dated November 28, 2005;

5. Affirmation of Joseph F. Romani, AAG filed December 23, 2005;

6. Reply Affirmation of Katherine A. Gilfillan, Esq. filed December 27, 2005.

Filed papers: None

Claimant Dana Chinitz moves for permission to file a late claim pursuant to Court of Claims Act (hereinafter "CCA") § 10 (6). The State of New York (hereinafter "State") opposes the motion.

In September 2003, Claimant enrolled as a freshman at Binghamton University in Vestal, New York and tried out for and became a member of the all-female "Cheerleading Team of Binghamton University." Claimant's position on the team was designated as a "flier." Claimant alleges that on Sunday, November 30, 2003, having just returned from Thanksgiving recess, the team cheered for 3 hours at a basketball game and then were instructed by the team coach, Kim Patrino, to practice for another 3 hours after the game despite complaints from team members that they were tired. During this practice session, Claimant avers that coach Patrino insisted on switching around the team's "stunt groups" meaning that members were performing stunts with other members with whom they had never practiced. Claimant asserts that she was directed to perform 9 or 10 "Liberty" movements in a row with the holders constantly being rotated.[1] On the last attempted "Liberty" movement, Claimant alleges the team members holding her lost their grip causing her to fall to the ground resulting in a fractured ankle. Claimant alleges that the team members lost their grip because they were exhausted following the game and the long practice session. Claimant also alleges that no mats or front spotter were provided during this practice session. Finally, Claimant alleges the coach, Kim Patrino, was not properly trained and did not adequately supervise the practice.

As a threshold matter, the court has jurisdiction over a motion to late file when it is filed within the comparable time period for bringing similar actions against a citizen of the state. (CCA § 10 [6]). Here, the comparable time period for a negligence cause of action is three years. (CPLR § 214). As such, this motion filed on December 8, 2005 is timely relative to this matter which allegedly accrued on November 30, 2003.

Turning to the substance of this motion, the factors that the Court must consider in determining a properly framed CCA § 10 (6) motion are whether:

1. the delay in filing the claim was excusable;

2. the State had notice of the essential facts constituting the claim;

3. the State had an opportunity to investigate the circumstances

underlying the claim;

4. the claim appears to be meritorious;

5. the failure to file or serve upon the attorney general a timely claim or to serve upon the attorney general a notice of intention resulted in substantial prejudice to the State; and

6. the Claimant has any other available remedy.

The first factor that should be addressed is whether the proposed Claim appears meritorious since it has been characterized as the most decisive component in determining a motion under CCA § 10 (6) and it would be futile to permit a meritless claim to proceed. (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, 10). In order to establish a meritorious claim, Claimant must establish that the proposed Claim is not patently groundless, frivolous, or legally defective and that there is reasonable cause to believe that a valid claim exists. (id. at 11). Claimant asserts that she satisfied this burden based upon her allegations of the physical exhaustion of the team, the failure to provide practice mats or a front spotter, the failure of the coach to properly supervise the practice and the inadequate qualifications and experience of the coach. The State argues that the doctrine of assumption of risk warrants a finding that this Claim does not appear meritorious.

Assumption of risk in competitive athletics "[i]s not an absolute defense but a measure of the defendant's duty of care." (Turcotte v Fell, 68 NY2d 432, 439). It is well-settled that "[b]y engaging in a sport or recreational activity, a participant consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation." (Morgan v State of New York, 90 NY2d 471, 484). However, a participant does not assume risks which are "unreasonably increased or concealed." (Benitez v New York City Bd. of Educ., 73 NY2d 650, 658 quoting McGee v Board of Educ. of City of N.Y., 16 AD2d 99, 102, lv denied 13 NY2d 596). Additionally, a litigant's assumption of risk is "to be assessed against the background of the skill and experience of the particular plaintiff [citation omitted]." (Maddox v City of New York, 66 NY2d 270, 278; Sharrow v New York State Olympic Regional Dev. Auth., 307 AD2d 605, 607).

In the first instance, the Court recognizes the well-settled principle that "[f]acts stated in a motion for leave to file a late claim against the State are deemed true for purpose of motion, when not denied or contradicted in opposing affidavits." (Sessa v State of New York, 88 Misc 2d 454, 458, affd 63 AD2d 334, affd 47 NY2d 976). Here, the State did not provide any affidavit from someone with first-hand knowledge denying Claimant's allegations and/or having a familiarity with the practice policies of the cheerleading team or the qualifications of the team coach. (Calzada v State of New York, 121 AD2d 988, 989). As such, Claimant's allegations are unchallenged and thus accepted as true for purposes of this motion.

That having been said, however, the Court's own research uncovered case law determining that such allegations even when true may well fall within the doctrine of assumption of risk. For example, Courts have determined that fatigue (Benitez, 73 NY2d 650 [football]), failure to provide mats on a hard floor surface (Traficenti v Moore Catholic High School, 282 AD2d 216 [cheerleading]), failure to provide spotters (Rendine v St. John's Univ., 289 AD2d 465 [cheerleading]; Royal v City of Syracuse, 309 AD2d 1284 [cheerleading]), or a spotter's failure to catch a fellow cheerleader (Traficenti, 282 AD2d 216) are all inherent risks in sports in general and cheerleading specifically. By the same token, however, there is also case law allowing the issue of whether cheerleaders were properly supervised to proceed to trial. (Driever v Spackenkill Union Free School Dist., 20 AD3d 384; Sheehan v Hicksville Union Free School Dist., 229 AD2d 1026).

Additionally, the court notes that neither party addresses the theory of inherent compulsion which prevents the use of assumption of risk as a defense when the element of voluntariness is overcome by the compulsion of a superior. (Benitez, 73 NY2d at 658). More particularly, the theory requires "a direction by a superior to do the act" and an economic compliance or other circumstance which equally impels compliance. (id.; Verduce v Board of Higher Educ. in City of N.Y., 9 AD2d 214, 219 [dissenting opn], revd on dissenting opn 8 NY2d 928). Here, Claimant alleges that she was supposed to receive college credit for participating on this team. As such, it is unclear to this Court whether Claimant was under a compulsion to perform the repetitive stunts as directed or risk losing college credit and the Court finds it is premature to determine whether this theory would be applicable under those circumstances.

Although this case has what appears to be similar allegations to some of the cases which failed to survive summary judgment, the Court finds that the procedural stage of this matter as a late filing motion distinguishes it from those cases. In other words, while the standard on a late filing application clearly places a heavier burden on a party who fails to comply with the statutory requirements than a party filing a timely claim, it does not require a Claimant on a late filing motion to overcome all objections nor does it suggest that the Court should engage in the kind of fact-finding on a late filing motion that would ultimately be necessary to adjudicate the actual merits of the case. (Matter of Santana, 92 Misc 2d at 11-12 ). Based on these facts, this Court finds that Claimant has met the minimal burden applicable on late filing motions. This is not to say, however, that this litigant will be successful at trial or be able to withstand a motion for summary judgment after full and complete disclosure, only that based upon these undisputed allegations Claimant has satisfied the minimal burden of establishing that her proposed Claim appears meritorious. Consequently, factor of merit weighs in favor of granting Claimant's application.

With respect to the remaining factors, Claimant's excuse for failing to timely file the Claim is that she did not fully comprehend the seriousness of her injuries. However, the Court notes that Claimant underwent surgery soon after the accident on December 9, 2003. To the extent that Claimant may not have understood her legal rights relating to her accident, ignorance of the law is not a valid excuse. (Innis v State of New York, 92 AD2d 606, affd 60 NY2d 654). This factor weighs against Claimant.

The factors of notice of the essential facts, opportunity to investigate, and lack of substantial prejudice will be discussed together since they involve analogous considerations.

The State concedes that it had notice of the essential facts constituting this claim from Claimant's father's attempts to have related uninsured medical expenses paid by Binghamton University, as well as an opportunity to investigate as a result of said notification. (Affirmation of Joseph F. Romani, AAG, ¶ 12). The State then speculates that there may be "some question as to prejudice" due to the two-year delay in filing this motion and the possible unavailability of witnesses. (Affirmation of Joseph F. Romani, AAG, ¶ 12). The Court finds the State's speculation on the issue of prejudice to be without merit. As such, the Court finds that the three factors of notice, opportunity to investigate and substantial prejudice all weigh in Claimant's favor.

Finally, with respect to the final factor of the existence of an alternate remedy, Claimant argues that no alternate remedies exist, while the State suggests that Claimant may have a legal remedy against the other cheerleaders who dropped her. (Affirmation of Joseph F. Romani, AAG, ¶ 16). Claimant's reply papers do not address this possible alternate remedy. The Court finds this factor weighs against the granting of the application.

Consequently, upon reviewing and balancing all of the factors enumerated in CCA § 10 (6), the Court finds that four of the six factors, including the all important factor of merit, weigh in favor of granting Claimant's motion for permission to file a late Claim pursuant to CCA § 10 (6).

In view of the foregoing, IT IS ORDERED that Claimant's motion for permission to late file, Motion No. M-71026, is GRANTED. Claimant shall file a Claim with the Clerk of the Court and serve a copy of the Claim upon the Attorney General within thirty (30) days from the date of filing of this Decision and Order with the Clerk of the Court. The service and filing of the Claim shall be in conformity with all applicable statutes and rules of the Court with particular reference to CCA §§ 10, 11 and 11-a.

January 17, 2006
Albany, New York

Judge of the Court of Claims

[1].Claimant describes a "Liberty" stunt as one when she is lifted standing on one leg by three team members whose arms are extended fully upright. (Claimant's Affidavit, ¶ 9 and Exhibit A thereto).