New York State Court of Claims

New York State Court of Claims

MORAVEC v. THE STATE OF NEW YORK, #2008-016-006, Claim No. 114043, Motion Nos. M-73974, CM-74197


Synopsis



Case Information

UID:
2008-016-006
Claimant(s):
GWYNETH BARBARA MORAVEC
Claimant short name:
MORAVEC
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
114043
Motion number(s):
M-73974
Cross-motion number(s):
CM-74197
Judge:
Alan C. Marin
Claimant’s attorney:
Edelman, Krasin & Jaye, PLLCBy: Sal A. Spano, Esq.
Defendant’s attorney:
Andrew M. Cuomo, Attorney GeneralBy: Gwendolyn Hatcher, Esq., AAG
Third-party defendant’s attorney:

Signature date:
February 21, 2008
City:
New York
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Defendant moves to dismiss the claim of Gwyneth Barbara Moravec, in which it is alleged that on June 17, 2006, claimant tripped and fell on a stairway leading to the entrance of the Performing Arts Center at Queens College. Ms. Moravec had previously made a motion for permission to file a late claim pursuant to §10.6 of the Court of Claims Act (motion no. M-72888), which was granted in a May 30, 2007 Decision and Order. The grounds for defendant’s motion are that: (1) the claim here differs from the proposed claim submitted with the late claim motion; and (2) while the claim was served on the Attorney General, it was not served on the City University of New York. Claimant cross-moves for an order permitting her to serve an amended claim that conforms to the proposed claim on the late claim motion or, in the alternative, extending the time to serve such proposed claim. It is undisputed that claimant failed to serve claim no. 114043 on the City University of New York. It is also undisputed that such claim differs from the proposed claim submitted on motion no. M-72888, as follows: (1) in the caption, it names the State rather than the City University of New York as defendant; and (2) it contains text alleging that the premises are owned by the State of New York. Claimant states that naming the State rather than the City University in the caption was an error, and she “withdraws” her allegations of State ownership.

Such can be remedied with an amended claim. See, e.g., O’Shea v State of New York, Ct Cl, November 18, 2005 (unreported, claim no. 101626, motion no. M-70462, UID #2005-016-066[1], Marin, J.), affd 36 AD3d 706, 829 NYS2d 561 (2d Dept 2007); and Shimmerlik v City University of New York, 142 Misc 2d 118, 536 NYS2d 380 (Ct Cl 1988), affd 154 AD2d 959, 546 NYS2d 506 (1st Dept 1989). See also Griffin v John Jay College, 266 AD2d 16, 697 NYS2d 278 (1st Dept 1999), in which the Appellate Division ruled that it was improper for the court to deny claimant’s second application for an extension of time to file her claim pursuant to a late claim motion order.

Accordingly, having reviewed the submissions[2], IT IS ORDERED that motion no. M-73974 be denied. IT IS FURTHER ORDERED that cross-motion no. CM-74197 be granted to the extent that within thirty (30) days of the filing of this decision and order, claimant shall serve and file an amended claim in the form of the proposed claim submitted with motion no. M-72888. Service upon CUNY and the Office of the Attorney General shall be made pursuant to §11 of the Court of Claims Act.


February 21, 2008
New York, New York

HON. ALAN C. MARIN
Judge of the Court of Claims




[1].This and other decisions of the Court of Claims may be found on the Court’s website: www.nyscourtofclaims.state.ny.us.
[2].The following were reviewed: defendant’s notice of motion with affirmation in support and exhibits A through C; claimant’s Notice of Cross-Motion and Affirmation in Opposition to Defendant’s Motion with Affirmation in Opposition to State’s Motion and in Support of Cross-Motion with exhibits A through F; defendant’s Affirmation in Opposition; and claimant’s Affirmation in Reply to Opposition to Cross-Motion.