New York State Court of Claims

New York State Court of Claims
GERARD v. THE CITY UNIVERSITY OF NEW YORK, # 2009-030-569, Claim No. NONE, Motion No. M-77142


Late claim motion granted. Claimant walked into unmarked glass exit doors at York College campus of CUNY. No need for medical expert affidavit to establish appearance of merit as argued by defendant.

Case information

UID: 2009-030-569
Claimant(s): PERRY GERARD
Claimant short name: GERARD
Footnote (claimant name) :
Footnote (defendant name) : The caption has been amended to reflect the only proper defendant.
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): NONE
Motion number(s): M-77142
Cross-motion number(s):
Claimant's attorney: RYAN & CONLON, LLP
Third-party defendant's attorney:
Signature date: December 7, 2009
City: White Plains
Official citation:
Appellate results:
See also (multicaptioned case)


The following papers were read and considered on claimant's motion for permission to

serve and file a late claim:

1,2 Notice of Motion; Affirmation in Support by Kieran J. Conlon, Attorney for Claimant and attached exhibits

3 Affirmation in Opposition by Gwendolyn Hatcher, Assistant Attorney General

4 Reply Affirmation by Kieran J. Conlon, Attorney for Claimant and attached exhibits

Perry Gerard alleges in his proposed claim that on June 1, 2008 defendant created and/or allowed a known dangerous condition to exist at the York College [York] campus of City University of New York [CUNY] which caused claimant serious and permanent injury. [Affirmation in Support by Kieran J. Conlon, Attorney for Claimant, Exhibit I]. More specifically, he alleges that defendant allowed unmarked, clear glass panels, to serve as exit doors from the Health and Physical Education Complex at York, creating a trap for those utilizing the exit doors, in violation of State and City codes and standards, causing claimant to walk into the door panel, hit his face, and suffer permanent injuries as a result. [Ibid.].

In order to determine an application for permission to serve and file a late claim, the Court must consider, "among other factors," the six factors set forth in 10(6) of the Court of Claims Act. The factors stated therein are: (1) whether the delay in filing the claim was excusable; (2) whether the State had notice of the essential facts constituting the claim; (3) whether the State had an opportunity to investigate the circumstances underlying the claim; (4) whether the claim appears meritorious; (5) whether substantial prejudice resulted from the failure to timely serve upon the Attorney General a claim or notice of intention to file a claim, and the failure to timely file the claim with the Court of Claims; and (6) whether any other remedy is available. The Court is afforded considerable discretion in determining whether to permit the late filing of a claim, thus the presence or absence of any particular factor is not dispositive. Bay Terrace Coop. Section IV, Inc. v New York State Employees' Retirement System Policemen's & Firemen's Retirement System, 55 NY2d 979, 981 (1982).

Additionally, the motion must be timely brought in order to allow that a late claim be filed ". . . at any time before an action asserting a like claim against a citizen of the state would be barred under the provisions of article two of the civil practice law and rules . . ." Court of Claims Act 10(6). Here, the applicable statute of limitations is three (3) years, thus the motion is timely premised on an asserted date of accrual of June 1, 2008. Civil Practice Law and Rules 214.

A copy of the proposed claim(2) , must accompany the motion, allowing the court to ascertain the nature of the claim, including the date of accrual, location of the alleged accident, and what injuries are alleged. See Court of Claims Act 11(b); 22 NYCRR 206.6.

A claim appears to be "meritorious" within the meaning of the statute if it is not patently groundless, frivolous or legally defective and a consideration of the entire record indicates 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). Claimant need not establish a prima facie case at this point, but rather the appearance of merit.

In his affidavit Mr. Gerard confirms the factual information contained in his proposed claim, and adds that on June 2, 2008 he returned to York to report the incident, met with CUNY personnel, and signed a statement concerning the incident. [Affirmation in Support by Kieran J. Conlon, Attorney for Claimant, Exhibit B]. A copy of such incident report and statement is annexed, as is a photograph of the glass door. [Ibid. Exhibits A and C]. Mr. Gerard also refers to his consultation with a prior attorney - whose affidavit is also annexed - indicating, as does the prior attorney, that they were under the impression that the proper entities had been served well within the statutory time periods first by service of a Notice of Claim on the New York City Office of the Corporation Counsel on July 7, 2008, and later by service on CUNY as directed by the Corporation Counsel's office on August 12, 2008. [Ibid. Exhibits B, D, E, F, H]. Believing that the proper party had been duly noticed, and that the scheduling of a hearing pursuant to General Municipal Law 50-h was forthcoming, prior counsel sought advice of a date for such hearing by letter dated January 23, 2009. [Ibid. Exhibits G, H]. He did not receive a response. [Ibid. Exhibit H]. Thereafter, prior counsel withdrew from representation of Mr. Gerard on or about March 6, 2009 because of a potential conflict of interest [Id.] , and present counsel was retained at some unspecified time. [Affirmation in Support by Kieran J. Conlon, Attorney for Claimant, 12]. Mr. Gerard had been left with the impression prior to retaining present counsel that when prior counsel withdrew, his rights had already been appropriately preserved. [Ibid. Exhibit B].

The present motion was made on August 28, 2009 by service upon the Attorney General's Office, CUNY, and York.

Defendant argues in opposition to the present motion that no reasonable excuse has been presented, and the claim does not have the appearance of merit. [Affirmation in Opposition by Gwendolyn Hatcher, Assistant Attorney General, 2]. With regard to excuse, defendant correctly argues that law office failure as described herein is not generally held to be a reasonable excuse for delay in timely service of a notice of intention to file a claim or timely service and filing of the claim itself on the proper party and in the proper court.

An excuse, however, is but one of the factors to be considered, and its presence or absence does not conclude whether late claim relief is afforded. Bay Terrace Coop. Section IV, Inc. v New York State Employees' Retirement System Policemen's & Firemen's Retirement System, supra. Indeed, even if the excuse offered is "not compelling", when the delay is minimal, when no prejudice would be suffered by the State, and when there are issues of fact as to the merits of the claim, late claim relief should be granted. Jomarron v State of New York, 23 AD3d 527, 528 (2d Dept 2005).

Although only peripherally addressed by claimant, and not at all addressed by defendant, the closely related factors of notice, opportunity to investigate and prejudice to the State, considered together, weigh toward granting claimant's motion. As noted by claimant, CUNY was a part of the initial investigation, and a photograph taken at or near the time of the incident memorializes the condition of the glass door. The passage of time has not been so great that the State's ability to investigate is impeded to its prejudice, [cf. Edens v State of New York, 259 AD2d 729 (2d Dept 1999) (Two and one-half years from date of accrual)].

As noted, claimant need not establish a prima facie case but the appearance of merit in an application for late claim relief. After careful consideration of claimant's submissions, and if the allegations in his affidavit and proposed claim are accepted as true for the purposes of the motion [see 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)], the Court finds that the claim has the appearance of merit.

To establish a prime facie case of negligence the following elements must exist: (1) that defendant owed the claimant a duty of care; (2) that defendant failed to exercise proper care in the performance of that duty; (3) that the breach of the duty was a proximate cause of claimant's injury; and (4) that such injury was foreseeable under the circumstances by a person of ordinary prudence. Defendant incorrectly argues that an expert affidavit from a physician and/or medical records are necessary to establish the threshold appearance of merit - a lesser standard than a prima facie case - on the motion with regard to the proposed claim herein. As a claim alleging negligence - as opposed to medical malpractice or inadequate highway design - alleged negligent omissions or acts by the defendants can be readily determined by a fact finder using common knowledge without the necessity of expert testimony. [See Matter of Caracci v State of New York, 178 AD2d 876 (3d Dept 1991); Matter of Perez v State of New York, 293 AD2d 918 (3d Dept 2002)(3) ; Schreck v State of New York, 81 AD2d 882 (2d Dept 1981)(4) ]; Klingler v State of New York, 213 AD2d 378 (2d Dept 1995);(5) Nyberg v State of New York, 154 Misc 2d 199 (Ct Cl 1992).(6) It does not require an expert to show that walking into a glass door might cause injury to the individual striking the door. [See Deutsch v City University of New York, UID

#2007-028-584, Claim No. 113685, Motion Nos. M-73670, CM-73725 (Sise, P.J., December 21, 2007);(7) cf. Ridore v State of New York, UID #2000-016-045, Claim No. None, Motion No. M-61488 (Marin, J., July 13, 2000) affd 282 AD2d 731 (2d Dept 2001).(8) Although not required to do so for late claim purposes, claimant has nonetheless attached medical records to a timely filed Reply Affirmation submitted herein that further confirms the fact of a contemporaneous injury related to walking into a glass door when read with his uncontradicted statements. [See Reply Affirmation by Kieran J. Conlon, Exhibit A].

Accordingly, and after careful consideration of all the appropriate factors, the court hereby exercises its discretion to find that claimant's motion for permission to serve and file a late claim is hereby granted. Claimant is directed to serve his claim upon CUNY(9) and the Attorney General, and to file it with the Chief Clerk of the Court of Claims, within forty five (45) days from the date of filing of this decision and order in the Clerk's Office, with such service and filing to be in accordance with the Court of Claims Act, with particular reference to 10, 11 and 11-a, and the Uniform Rules for the Court of Claims.

December 7, 2009

White Plains, New York


Judge of the Court of Claims

2. Court of Claims Act 10(6) states in pertinent part: ". . . The claim proposed to be filed, containing all of the information set forth in section eleven of this act, shall accompany such application . . ."

3. In proposed claim alleging that the misdiagnosis and inadequate treatment of a cancerous ulceration on his leg resulted in deformity and permanent injury, medical records alone insufficient in support of late claim motion. Expert medical evidence was required to show that the alleged inadequate treatment of ulcer was inadequate in the first instance, and that the ulcer was cancerous when examined, and how such failures are linked to the damages suffered.

4. Court of Claims abused discretion in allowing late claim to be filed in claim alleging medical malpractice where no affidavit by medical expert causally linking birth of brain damaged child to asserted malpractice submitted.

5. "The claimant's unsupported opinion that her motor vehicle accident might not have happened had the State installed a traffic light at the intersection where it occurred does not suffice to establish that her claim has merit . . ." Klingler v State of New York, supra at 379.

6. ". . . late claim applications alleging negligence in highway design and construction must be supported by the sworn opinion of someone with related expertise. The absence of a supporting opinion will likely make such a late claim application untenable, albeit allowing for ad hoc exceptions similar to certain medical malpractice claims where a medical opinion may not be necessary if common everyday experience and knowledge allow an assessment of the circumstances . . . (citation omitted)." Nyberg v State of New York, supra at 203.

7. "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."

8. In denying the application for late claim relief in a case where claimant alleged she had slipped and fallen in soapy water, and asserted that therefrom she suffered from headaches, dizziness, loss of balance and the like, consulted a chiropractor and another medical office, the Court noted that no medical records were appended to substantiate this assertion. Together with consideration of the other factors, the vague causal nexus between the injuries asserted and the negligence claimed, resulted in denial of the motion and later affirmance of the exercise of discretion by the Court of Claims in the Appellate Division. No "rule" to the effect that an expert medical affidavit or medical records are necessary in all proposed claims of personal injury is derived therefrom.

9. Whenever a claim is made against CUNY, not only must the Office of the Attorney General be timely served with a notice of intention to file a claim, or a claim, within ninety (90) days, but CUNY must also be served. Court of Claims Act 11(a)(ii); Education Law 6224(4); Flynn v City Univ. of N.Y. at Brooklyn Coll., 6 AD3d 656 (2d Dept 2004); Brinkley v City Univ. of N. Y., 92 AD2d 805 (1st Dept 1983); Matter of Krales v City Univ. of N.Y., 128 Misc 2d 168, 169 (Ct Cl 1985); Sessions v City of New York, UID #2000-016-085, Claim No. 100265, Motion No. M-61774 (Marin, J., October 4, 2000.).