New York State Court of Claims

New York State Court of Claims

MORAVEC v. THE CITY UNIVERSITY OF NEW YORK, #2007-016-018, Claim No. None, Motion No. M-72888


Late claim motion was 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):

Alan C. Marin
Claimant’s attorney:
Edelman, Krasin & Jaye, PLLCBy: Gregory D. Bellantone, Esq.
Defendant’s attorney:
Andrew M. Cuomo, Attorney GeneralBy: Ellen Matowik Russell, Esq., AAG
Third-party defendant’s attorney:

Signature date:
May 30, 2007
New York

Official citation:

Appellate results:

See also (multicaptioned case)


Gwyneth Barbara Moravec moves for permission to file a late claim pursuant to §10.6 of the Court of Claims Act (the “Act”). In her proposed claim, Ms. Moravec alleges that on June 17, 2006, she tripped and fell on a stairway leading to the entrance of the Performing Arts Center at Queens College. Claimant further alleges that her fall was caused because the steps were broken and cracked with raised portions, and because of poor lighting conditions. 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.[1]

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 served a notice of claim on CUNY within 90 days of the incident (although she failed to serve it on the Attorney General or to file it with the Clerk of the Court). In addition, an incident report was prepared following the accident. Defendant raises no argument with regard to these three factors, and I find that they have been met.

With regard to an alternate remedy, the sole appropriate venue in this case is an action in this Court. Claimant states only that the failure to properly serve and file was a mistake; such is not a recognized excuse for the purposes of the act. See, e.g., Erca v State of New York, 51 AD2d 611, 378 NYS2d 328 (3d Dept 1976), affd, 42 NY2d 854, 397 NYS2d 631 (1977).

The remaining factor to be considered is whether the proposed claim appears meritorious. Defendant argues that the photographs annexed to the proposed claim do not in fact show a defective condition or at most show a trivial defect. In addition, defendant points out that the incident report does not refer to a defective condition and indicates that the steps were dry and well lit.[2] While these issues will ultimately have to be addressed at trial, for the purposes of this motion, I find that claimant meets 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.”

In view of the foregoing, having reviewed the submissions[3], IT IS ORDERED that motion no. M-72888 be granted and that within forty-five (45) days of the filing of this Decision and Order, claimant shall serve and file her claim in compliance with Court of Claims Act §11 and §11-a.

May 30, 2007
New York, New York

Judge of the Court of Claims

  1. [1]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).
  2. [2]Defendant also argues that the proposed claim does not comply with the pleading requirements of §11.b of the Act in that it fails to contain an adequate description of the accident location. I find that the proposed claim is sufficient for the purposes of §11.b: it states that the fall occurred on the third set of stairs walking down from the entrance to the Performing Arts Center, and annexes photographs which show the location.
  3. [3]The Court reviewed claimant’s notice of motion with affirmation in support and exhibits A through C; defendant’s affirmation in opposition with exhibit A; and claimant’s reply affirmation.