New York State Court of Claims

New York State Court of Claims

DEUTSCH v. CITY UNIVERSITY OF NEW YORK, #2007-028-584, Claim No. 113685, Motion Nos. M-73670, CM-73725


: Motion for permission to late file is granted. No expert affidavit is needed when the proposed claim seeks recovery from injuries allegedly sustained when a pedestrian tripped on an uneven and defective sidewalk.

Case Information

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

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

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):
Claimant’s attorney:
CALANO & CULHANE, LLPBY: Thomas A. Culhane, Esq.
Defendant’s attorney:
BY: Gwendolyn Hatcher, Esq.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
December 21, 2007

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read on claimant’s motion for permission to file an untimely claim and defendant’s cross-motion for dismissal:

1. Notice of Motion and Supporting Affirmation of Thomas A. Culhane, Esq., with annexed Affidavit of Christine Deutsch, and annexed Exhibits;

2. Notice of Cross-Motion and Affirmation in Support of Cross-Motion and in Opposition to claimant’s motion of Gwendolyn Hatcher, AAG, with annexed Exhibits; and

3. Affirmation in further support of claimant’s motion and in opposition to respondent’s cross-motion of Thomas A. Culhane, Esq.

Filed papers: Claim, Verified Answer.

This action arose on February 15, 2007, on the campus of York College, which is part of the City University of New York. Claimant states in her affidavit that, in connection with her work as a public school teacher, she was on campus for a field trip that her students were making to the college, to attend the College’s Shadow Box Theater. The students arrived by bus and waited, still in the bus, while Claimant went into the building to find out if they could have lunch in the college’s cafeteria. As she was returning to the bus, she tripped on what she describes as a “raised sidewalk flag,” approximately 12 feet west of the entrance gate, located at 94-20 Guy R. Brewer Boulevard. (Photographs of the sidewalk, taken within a month of the accident, are submitted as Exhibits B, C, and D to Culhane affirmation.)

Immediately after the accident, claimant was helped to her feet by several passersby. She went to the bus to get the school children, led them to the cafeteria, reported the accident at the security desk near the building’s entrance, and subsequently went to the College’s medical office, where her left arm was placed in a splint. An ambulance was summoned and she was then taken to Franklin Hospital Medical Center, where her injury was diagnosed as a fractured left wrist.

A claim was personally served on Defendant City University of New York on April 30, 2007 and subsequently filed with the Court on May 10, 2007, both dates falling within the 90-day period following February 15, 2007. No copy of the claim was served on the Attorney General, however, as is required by section 11(a)(ii) of the Court of Claims Act. Recognizing that that omission made the claim jurisdictionally defective (Finnerty v New York State Thruway Authority, 75 NY2d 721 [1989] [“service on the Attorney-General is required for the commencement of an action against the Thruway Authority in the Court of Claims”]; Flynn v City University of New York at Brooklyn College, 6 AD3d 656 [2d Dept 2004]), claimant has now moved for permission to commence her action as a late claim (Court of Claims Act § 10[6]). In response, Defendant has cross-moved to dismiss Claim No. 113685 because of the jurisdictional defect, and the cross motion will be granted.

Section 10(6) contains the following non-exclusive list of the factors to be considered in determining a motion for permission to late file. The Court must consider 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 provide timely notice resulted in substantial prejudice to the State; and

6. the Claimant has any other available remedy.

The Court in the exercise of its discretion balances these factors. As a general proposition, the presence or absence of any one factor is not dispositive (Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's and Firemen's Retirement Sys., 55 NY2d 979 [1982]), and the Court has broad discretion in deciding a motion to permit the late filing of a claim (Ledet v State of New York, 207 AD2d 965 [4th Dept 1994]).

Claimant’s failure to properly and timely commence an action against Defendant was caused by law office failure and/or lack of knowledge of the requirements for commencing such an action. Neither reason provides an acceptable excuse for failing to comply with the time limitations of Court of Claims Act §10 (see e.g. Erca v State of New York, 51 AD2d 611 [3d Dept 1976], affd 42 NY2d 854 [1977]; Sevillia v State of New York, 91 AD2d 792 [3d Dept 1982]; Spickerman v State of New York, 85 AD2d 60, 61 [3d Dept 1982]).

On the other hand, defendant had timely and adequate notice of the facts constituting the claim and claimant’s intention to pursue legal action as a result of the timely service of the claim on defendant, even though there was no service on the Attorney General. Consequently, there was adequate opportunity for Defendant to investigate the underlying circumstances, and no prejudice will result if the requested relief is granted.

In opposing the instant motion, counsel for defendant argues that claimant cannot establish that the proposed claim is sufficiently meritorious because she fails to include the affidavit of an engineer or safety consultant to establish that the location constituted a tripping hazard (Hatcher affirmation, ¶ 11); fails to establish that defendant either created the condition or had actual or constructive notice of the alleged defect (id. ¶ 12); fails to describe the condition of which she now complains when making her report to the College’s security officer and other staff (id. ¶ 14), and that any differential in elevation on the sidewalk is de minimus and therefore cannot give rise to liability (id. ¶ 15, Exhibit C).

To succeed in establishing the threshold appearance of merit for purposes of a late claim motion, a party 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 [Ct Cl 1977]). Furthermore, “[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 [Ct Cl 1976], affd 63 AD2d 334 [3d Dept 1978], affd 47 NY2d 976 [1979]), see also Nyberg v State of New York, 154 Misc 2d 199 [Ct Cl 1992]).

An expert’s affidavit of merit is necessary where the nature of the alleged wrongdoing of the defendant cannot be assessed on the basis of common everyday experience and knowledge (Matter of Caracci v State of New York, 178 AD2d 876 [3d Dept 1991]; see e.g. Klinger v State of New York, 213 AD2d 378 [2d Dept 1995] [installation of a traffic signal]; Schreck v State of New York, 81 AD2d 882 [2d Dept 1981] [medical affidavit establishing a causal connection]; Nyberg v State of New York, 154 Misc 2d 199 [Ct Cl 1992] [erection of a median barrier]). As indicated by the cases cited above, expert affidavits are most commonly required when the proposed claim alleges negligence in areas such as highway design and medical malpractice. It does not require an expert to establish that an irregularity on a sidewalk may cause a pedestrian to trip and fall. As to the other issues raised by defense counsel – the amount of elevation differential, the question of whether defendant had actual or constructive notice, and the credibility of claimant’s account of the accident – all are matters that are properly considered at trial after both parties have had an opportunity to carry out discovery. Claimant has succeeded in establishing a sufficient appearance of merit to permit late filing of her claim.

Although the question of whether claimant has an alternative remedy is not addressed by either party, it appears that the only possible alternative would be a Workers’ Compensation claim since the accident occurred while she was carrying out the duties of her employment. While such a claim is recognized as an alternative remedy (Nicometti v State of New York, 144 AD2d 1036 [4th Dept 1988], lv denied 73 NY2d 710 [1989]), it is one that provides only partial relief (Matter of Garguiolo v New York State Thruway Authority, 145 AD2d 915 [4th Dept 1988]; Fowx v State of New York, 12 Misc 3d 1184(A) [Ct Cl 2006]). Taking into account the six statutorily prescribed factors, the Court finds them to weigh in favor of granting Movant's motion for permission to file a late claim. Defendant’s cross motion to dismiss Claim No. 113685 is GRANTED. Claimant’s application for permission to late file a claim is also GRANTED and she is directed to file and serve a claim identical to the proposed claim and to do so in conformity with the requirements of Court of Claims Act §§ 10, 11 and 11-a within thirty (30) days of the date this Decision and Order is filed.

December 21, 2007
Albany, New York

Judge of the Court of Claims