DR v. THE STATE OF NEW YORK, #2007-044-510, Claim No. 112620, Motion Nos.
Defendant's motion to dismiss the claim based upon claimant's failure to timely
serve and file the claim is granted. The scant facts asserted in this claim
against defendant for a sexual assault by another college student, made without
personal knowledge by claimant's attorney, lead to a finding of lack of merit of
the cause of action. Moreover, the inexcusable delay of 13 months in making this
motion, the substantial prejudice to defendant due to the lost opportunity to
interview witnesses, and the existence of an alternate remedy in the form of an
extant action against the perpetrator all weigh against claimant. As a result,
claimant's simultaneous motion for permission to file and serve a late claim is
denied without prejudice
1 1.The Court has, sua sponte, amended the caption to reflect a fictitious name
for claimant pursuant to Civil Rights Law § 50-b (1).
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
CATHERINE C. SCHAEWE
LAW OFFICES OF GERARD M. MARRONE, P.C.BY: Gary R. DeFilippo, Esq.
HON. ANDREW M. CUOMO, ATTORNEY
GENERALBY: Carol A. Cocchiola, Assistant Attorney General
March 9, 2007
See also (multicaptioned
Defendant State of New York (defendant) moves to dismiss the claim herein for
lack of personal and subject matter jurisdiction, on the ground that claimant
failed to comply with the mandatory service and filing requirements of the Court
of Claims Act. Simultaneously, claimant moves
for permission to file a late claim, among other things. Claimant's cross
motion is opposed by defendant.
The underlying claim in both motions arises out of an incident that took place
on the campus of the State University of New York at Binghamton (BU) during the
period of May 12-13, 2005. Claimant, a 19-year-old female student at BU at the
time of the incident, alleges a cause or causes of
for negligence against defendant, BU,
the New York State Police, and the New York State University
for failing to prevent claimant from
being sexually assaulted and raped in her dormitory room by another student,
John Barravecchia, while claimant was voluntarily intoxicated. It appears
undisputed by the parties that Barravecchia subsequently pled guilty to a charge
of rape in the third degree.
The procedural history of the claim is both extensive and confusing. A
document entitled “Claim” was personally served on the Attorney
General's Office on June 14, 2006. Interestingly, the claim alleges that it was
served and filed within 90 days of the accrual of the claim, then states that
the claim accrued on May 12-13, 2005, and finally, the document was signed and
notarized on June 13, 2006. In response to the claim, defendant served and
filed a Verified Answer dated July 17, 2006. Defendant thereafter received a
letter from the Clerk of the Court of Claims dated July 25, 2006, acknowledging
receipt of the Verified Answer on July 19, 2006 and advising that no claim had
been filed with the Clerk. Claimant was also sent a copy of that letter.
On August 9, 2006, claimant filed a pleading entitled “Verified
Complaint” (which included an attached “Summons”) with the
Clerk of the Court. The pleading was captioned “Court of Claims of the
State of New York,” and the Clerk of the Court designated it as Claim No.
112620. On August 23, 2006, the “Summons” and “Verified
Complaint” were personally served upon the Attorney General's office in
New York City.
In the Verified Complaint, claimant alleges that on or about June 14, 2006,
“Plaintiff” served a “Notice of Claim” upon defendant
and the other state agencies referenced above. The Verified Complaint also
alleges that a copy of this “Notice of Claim” was attached and
incorporated by reference in the Verified Complaint. However, the document
apparently referenced by the Summons and Complaint is actually entitled
and is the document that
was served upon the Attorney General's Office on June 14, 2006.
To add to the confusion, in his affirmation in opposition to defendant's
motion, claimant's counsel avers that a motion for permission to serve a late
“Notice of Claim” “pursuant to § 10 (3) of the Court of
was filed with the Court of
Claims on June 20, 2006. Counsel further submits in this affirmation that both
the motion and the Summons and Complaint were filed and served within the
“one year and ninety day statute of
The affirmation goes on
to set forth an analysis of the statutory factors listed in Court of Claims Act
§ 10 (6), which are to be considered by the Court in its determination of
whether to permit filing of a late claim.
Upon receipt of this affirmation, the Court conducted a conference call with
the parties' counsel, and advised that no motion for permission to file a late
claim had ever been received by the Court. Defendant also advised that it had
not been served with such a motion. The Court sua sponte granted an adjournment
of defendant's motion to dismiss until November 22, 2006 in order to allow time
for claimant to cross-move for permission to file a late claim.
Claimant accordingly submitted a motion
permission to file a late “Notice of Claim,” or alternately
requesting that the Court deem the prior service of the “Notice of
Claim” on June 14, 2006 to be timely. Defendant opposed the motion, and
claimant thereafter filed an “Affirmation in Further Support of
Motion” on November 28, 2006, six days after both motions' return
DEFENDANT'S MOTION TO DISMISS FOR
LACK OF PERSONAL/SUBJECT MATTER JURISDICTION
First considering defendant's motion to dismiss Claim No. 112620 for lack of
jurisdiction, the Court hereby grants said motion. Despite claimant's counsel's
misunderstandings regarding both the terminology and procedure set forth in the
Court of Claims Act, the law pertaining thereto is both well- and long-settled.
Because the claim accrued on May 12-13, 2005, either a claim must have been
filed and served, or a notice of intention to file a claim must have been
served, by August 11, 2005. In the event that claimant had filed a notice of
intention to file a claim by August 11, 2005, claimant would have then been
allowed until May 13, 2007 to file and serve an actual claim (Court of Claims
Act § 10 ). As claimant's counsel subsequently
no document - whether
denominated a claim or a notice of intention to file a claim - was served until
June 14, 2006, over 13 months after the claim accrued. Defendant properly
asserted the affirmative defense in its answer of claimant's failure to either
timely serve a notice of intention or timely file and serve a
Claimant's failure to comply with
the filing and service requirements set forth in Sections 10 and 11 of the Court
of Claims Act is jurisdictional in nature, and these requirements must be
strictly construed (Finnerty v New York State Thruway Auth.
, 75 NY2d 721,
722 ). Failure to comply mandates dismissal (Lichtenstein v State of
, 93 NY2d 911 ) and accordingly, Claim No. 112620 is
CLAIMANT'S MOTION FOR PERMISSION TO FILE AND SERVE A LATE CLAIM
The Court now turns to claimant's motion for permission to file and serve a
late claim. Although claimant's motion papers refer to the attached proposed
claim as a proposed “Notice of Claim,” the document is actually
entitled “Claim,” and the Court will treat it as a proposed claim,
rather than a notice of intention to file a claim. The entire substantive
portion of the proposed claim submitted with the motion states:
“2. This claim arises from the acts or omissions of the defendants.
Details of said acts or omissions are as follows:
“On or about May 12-13, 2005, while I was a student at State University
of New York at Binghamton, I was raped by another student, John P. Barravechia
[sic], while I was in my dorm room, 323a at Broome Hall. Based upon information
and belief the University's [sic] sponsored a “Pub Crawl” event that
began with underage drinking on campus grounds and continued with underage
drinking at bars within the City of Binghamton. I had become intoxicated and
unable to defend myself against Mr. Barravecchia's attack. The University
Police were aware of the underage drinking on the campus grounds, as was the
Although defendant might legitimately argue that no cause of action has been
set forth in that rather succinct statement, the Court must consider the
substance of the claim, rather than the sufficiency of the pleadings (Matter
of Santana v New York State Thruway Auth., 92 Misc 2d 1 ). The Court
must therefore look “at all of the submitted papers, including affidavits
and exhibits, to determine whether a putative claimant has met the statutory
burden of 'apparent merit' and is not confined to the text of the proposed claim
itself” (Mamedova v City University of New York, 13 Misc 3d 1211[A]
[Ct Cl 2006]; see Matter of Santana v New York State Thruway Auth.,
A review of the entirety of claimant's submissions indicates that claimant's
contention appears to be that defendant, as a landowner, was negligent in its
supervision and control of the premises at BU, as well as negligent in failing
to fulfill its duty to insure the safety of the residents and the public.
Claimant further avers that defendant “sponsored” an event called a
“Pub Crawl” which encouraged underage drinking, and that defendant
was aware of Barravecchia's alleged prior incidents of intoxication and
“deviant sexual behavior”1
negligently failed to protect claimant from him.
The threshold question in reviewing a motion for permission to file a late
claim is whether the motion has been filed within the statute of limitations
period attributable to the underlying cause of action (Court of Claims Act
§ 10 ), which for negligence is three years (CPLR 214
If that underlying requirement is
not met, the Court does not have jurisdiction to entertain the motion. This
motion is clearly timely, as it has been filed within three years of the accrual
date of May 13, 2005.
The factors that the Court must consider in determining a motion to permit a
filing of a claim are whether:
1) the delay in filing the claim was excusable;
2) defendant had notice of the essential facts constituting the claim;
3) defendant 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
serve upon the attorney general a notice of intention resulted in substantial
prejudice to defendant; and
6) claimant has any other available remedy.
Claimant first asserts that the delay in filing the claim was excusable, as
claimant was not aware of the filing requirements including the strict time
limitations. The excuse that claimant was ignorant of the law has been held to
be unacceptable, and the delay found to be inexcusable (Matter of E.K. v
State of New York, 235 AD2d 540, 541 , lv denied, 89 NY2d 815
; Sevillia v State of New York, 91 AD2d 792 ). This factor
weighs against claimant.
The next three factors: notice of the essential facts, opportunity to
investigate and lack of substantial prejudice, are frequently analyzed together
since they involve similar considerations. Because claimant was a student at BU
and reported the incident to University officials, defendant obviously had
notice of the essential facts and an opportunity to investigate, both of which
factors weigh in favor of claimant.
Defendant contends that it has been substantially prejudiced, however, as any
witnesses to the events, including the drinking and claimant's interactions with
Barravecchia, would be lost and unavailable to it. Claimant responds that,
because the Broome County District Attorney's Office prosecuted Barravecchia,
any claim that a lost opportunity to interview witnesses or investigate the
facts is prejudicial must mean that the District Attorney's investigation and
prosecution were incompetent. Claimant further avers that since Barravecchia
was prosecuted and convicted, it is clear that the claim was fully investigated
and that no information has been lost.
Claimant's argument, to the extent that it is relevant, completely overlooks
the point that the Broome County District Attorney’s Office conducted the
investigation and prosecution of Barravecchia, rather than the State (see
Cannon v State of New York, Ct Cl, Nov. 23, 2004, Hard, J., Claim No. None,
Motion No. M-68981 [UID # 2004-032-106]). Moreover, the issues involved in a
prosecution and conviction of rape in the third degree are substantially
different, to say the least, than those involved in an investigation of the
potential negligence of a landowner in allowing such an incident to happen.
This factor weighs against claimant.
Another factor is whether claimant has any other available remedy. Despite
claimant's allegation that no other remedy is available, Barravecchia is
referred to throughout the “Verified Complaint” as “a
separately suited defendant.”1
Claimant is apparently availing herself of the opportunity to pursue a separate
action against Barravecchia, and might also be able to bring action against the
bar owners who allegedly unlawfully served her alcohol. Accordingly, the
availability of other remedies weighs against claimant.
The issue of whether the proposed claim appears meritorious is the most crucial
component in determining a motion under Court of Claims Act § 10 (6),
since it would be futile to permit a meritless claim to proceed (Matter of
Santana v New York State Thruway Auth., supra at 10). In order to
establish a meritorious claim, a claimant must demonstrate 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). There is a heavier burden on a party moving for permission to file a late
claim than on a claimant who has complied with the provisions of the Court of
Claims Act (see id. at 11-12; see also Nyberg v State of New York,
154 Misc 2d 199, 202-203 ).
In order to establish the appearance of a meritorious claim in negligence,
claimant must allege some sort of duty owed to her by defendant. New York
courts have clearly established that the duty of care owed by a university to
its students is narrow (Eiseman v State of New York, 70 NY2d 175, 190
). A college does not have a duty to supervise its students' activities
outside the classroom (id.; McEnaney v State of New York, 267 AD2d
748 ; Rothbard v Colgate Univ., 235 AD2d 675 ). Moreover, it
has no legal duty to shield students from the dangerous activities of other
students, or from their own dangerous activities (Rothbard, supra
Claimant's counsel argues in his affirmations that the claim is meritorious
because defendant permitted underage drinking on campus and did not comply with
its duty as a landowner to provide security for claimant, and further alleges
that defendant undertook a “special relationship” to protect
students from underage drinking. Claimant contends that defendant sponsored the
“Pub Crawl” event during which claimant became intoxicated off
campus. Claimant's counsel also argues that defendant was or should have been
aware of a predilection for sexual assault on the part of Barravecchia, as
claimant allegedly told a Resident Director about another alleged assault by
Barravecchia which occurred on May 11,
While facts stated in a motion for leave to file a late claim against the State
are normally deemed true for purpose of the motion, this rule is only applicable
where such statements are made by an individual with first-hand knowledge of the
facts in question (Jolley v State of New York, 106 Misc 2d 550, 551-552
[Ct Cl 1980]). Generally, a motion for permission to file a late claim should
be supported with an affidavit from someone with first-hand knowledge of the
incident, unless the information is contained elsewhere, such as the proposed
claim verified by the claimant (Matter of Santana v New York State Thruway
Auth., supra at 11).
There is no affidavit from the claimant herself in support of her motion for
permission to file a late claim. The only document verified by claimant is the
proposed claim itself, the substantive portion of which is quoted at pp 5-6,
. Claimant fails to make even conclusory allegations of negligence
in that document, much less allegations supported by sufficient facts to
establish the appearance of a claim (see Brown v State of New York
Cl, Jan. 15, 2003, Lebous, J., Claim No. None, Motion No. M-66056 [UID #
2003-019-503]). Claimant merely states that underage drinking occurred, that
the university was aware of it, and that she was sexually assaulted. Any
allegations which might arguably be sufficient to support this motion for
permission to file a late claim are made solely by claimant's counsel, who does
not possess first-hand knowledge of the facts. Accordingly, counsel's
allegations themselves must be deemed conclusory in nature and insufficient to
support a finding of merit (see
Claimant has thus failed to
establish that there is reasonable cause to believe a valid claim exists, and
this factor must weigh against claimant.
Upon reviewing and balancing the factors set forth in Court of Claims Act
§ 10 (6), the Court finds that four of the six factors, including the
crucial issue of merit, weigh against claimant, thereby warranting denial of
claimant's request for permission to file a late
Claimant may, of course, file a
second motion for such relief upon proper papers, including but not limited to a
proposed claim verified by claimant which sets forth a cognizable cause of
Consequently, it is ordered that defendant’s motion to dismiss is granted
and Claim No. 112620 is dismissed in its entirety. Claimant's motion for
permission to file a late claim is denied, without prejudice.
March 9, 2007
HON. CATHERINE C. SCHAEWE
Judge of the Court of Claims
The following papers were read on defendant’s motion to dismiss and
claimant’s cross motion for permission to file a late claim:
1) Defendant’s Notice of Motion filed on September 25, 2006; Affirmation
of Carol A. Cocchiola, AAG, dated September 22, 2006, and attached Exhibits A
2) Affirmation in Opposition of Gary R. DeFilippo, Esq., dated October 2,
2006, and attached exhibits.
3) Claimant’s Notice of Motion filed on October 19, 2006; Affirmation of
Gary R. DeFilippo, Esq., dated October 11, 2006, and attached exhibits.
4) Affirmation in Opposition of Carol A. Cocchiola, AAG, dated November 15,
2006, and attached Exhibit A.
5) Affirmation of Gary R. DeFilippo, Esq., dated November 24, 2006, in further
support of motion to file a late claim.
Filed Papers: Claim (“Verified Complaint”) filed on August 9,
. Claimant denominates the papers as a motion,
although the Court instructed claimant to file the papers as a cross motion. In
the interest of judicial economy, the Court hereby exercises its discretion to
treat claimant's request as a cross motion, although herein it will be termed a
. The number of causes of action is dependent
on the document reviewed; the “Verified Complaint” contains seven
causes of action, whereas the “Claim” served June 14, 2006 (see
) contains one at most.
. Defendant also moves to amend the caption to
reflect the State of New York as the sole defendant, which motion is granted.
. Defendant's Exhibit A, Motion No.
.Affirmation in Opposition to Motion to
Dismiss, ¶ 5.
. In the interest of justice, the Court has
reviewed and considered the “Affirmation in Further Support of
Motion” despite its untimely submission.
. Affirmation in Support of Motion for
permission to file and serve a late claim, unnumbered paragraphs 4, 6 and 9.
1. Exhibit B to defendant's Motion to
Dismiss, ¶¶ 4 and 5.
. Affirmation in Opposition to Motion to
Dismiss, Exhibit C, “Summons” and “Verified Complaint,”
¶ ¶ 24, 49, 62 and 75.
. Despite claimant's counsel's contentions,
the one year and 90 ninety day statute of limitations set forth in General
Municipal Law § 50-i is irrelevant to this matter, fortunately for
. “Verified Complaint,”
attached as Exhibit C to claimant's Affirmation in Opposition to defendant's
Motion to Dismiss; ¶¶ 2, 9, 10, 23 (both), 26, 30, 31, 44, 48, 51, 55,
56, 61, 64, 68, 69, 74, 77, 81 and 82.
. For the record, both allegations were
controverted by an affidavit of Rodger Summers, Vice President for Student
Affairs. The Summers Affidavit stated that the BU Student Association sponsored
the “Pub Crawl” event, which occurs off-campus. Summers further
states that the Student Association is a separate, independent, student-run
organization, with its own taxpayer identification number, liability insurance
and budget. Summers also alleges that defendant had no prior knowledge of
either underage drinking or any instances of sexual assault by
Even if claimant made the allegations contained in counsel’s affirmation,
to the extent that she may be attempting to assert a cause of action against
defendant based upon the actions or inactions of the New York State Police and
the New York State University Police, such a cause of action would also lack
merit. The duty to provide police protection is a duty owed to the public at
large rather than to any one individual, and absent a special relationship
between the injured party and the governmental entity, that entity is immune
from claims of negligence in the performance of its governmental functions
(see Cuffy v City of New York, 69 NY2d 255 ; Miller v State of
New York, 62 NY2d 506 ). Claimant has failed to set forth any
evidence that the State Police or University Police assumed an affirmative duty
to protect her or that she justifiably relied on such an affirmative undertaking
(McEnaney v State of New York, supra).
. Claimant’s alternate request that
this Court deem the “Notice of Claim” served on June 14, 2006 as
timely is also denied. Regardless of whether it was a notice of claim, a notice
of intention to file a claim or a claim, it was not timely.