New York State Court of Claims

New York State Court of Claims
DIAZ v. THE STATE OF NEW YORK & FASHION INSTITUTE OF TECHNOLOGY OF NEW YORK, # 2010-016-029, Claim No. None, Motion No. M-78049

Synopsis

Late claim motion was denied.

Case information

UID: 2010-016-029
Claimant(s): ESTELLA DIAZ
Claimant short name: DIAZ
Footnote (claimant name) :
Defendant(s): THE STATE OF NEW YORK & FASHION INSTITUTE OF TECHNOLOGY OF NEW YORK
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): None
Motion number(s): M-78049
Cross-motion number(s):
Judge: Alan C. Marin
Claimant's attorney: The Shanker Law Firm, P.C.
By: Steven J. Shanker, Esq.
Defendant's attorney: Andrew M. Cuomo, Attorney General
By: Gwendolyn Hatcher, Esq., AAG
Third-party defendant's attorney:
Signature date: May 10, 2010
City: New York
Comments:
Official citation:
Appellate results:
See also (multicaptioned case)

Decision

Claimant Estella Diaz 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. Diaz alleges that on January 21, 2009, she slipped and fell on a crack in the sidewalk outside the Fashion Institute of Technology in Manhattan.

Section 10.6 provides that the Court shall consider: 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) the defendant was substantially prejudiced; (4) the claimant has any other available remedy; (5) the delay was excusable and (6) the claim appears to be meritorious.

However, the above of course assumes jurisdiction, which does not lie here. The Court of Claims does not have jurisdiction over the Fashion Institute of Technology, a community college established under the auspices of the Board of Education of the City of New York. Education Law 6306, subdivisions 3 and 3-a; compare with Education Law 6224.4. See, e.g., three cases decided by the Hon. Faviola A. Soto of the Court of Claims on March 30, 2009: Pychynski v State of New York (unreported, claim no. 116001, motion no. M-75904); Kisiel-Sadowski v State of New York (unreported, claim no. 116002, motion no. M-75905); and Delicio v State of New York (unreported, claim no. 116003, motion no. M-75879).

Accordingly, having reviewed the submissions(1) , IT IS ORDERED that motion no. M-78049 be denied.

May 10, 2010

New York, New York

Alan C. Marin

Judge of the Court of Claims


1. The following were reviewed: claimant's notice of motion with affirmation in support and exhibits A through G; and defendant's affirmation in opposition with exhibit A.