|Claimant(s):||MI SUK KIM|
|Claimant short name:||KIM|
|Footnote (claimant name) :|
|Defendant(s):||CITY UNIVERSITY OF NEW YORK|
|Footnote (defendant name) :||The caption has been amended to reflect that the sole proper defendant is the City University of New York; the State and City University are distinct legal entities and the State is thus not properly named here.|
|Judge:||Alan C. Marin|
|Claimant's attorney:||Law Offices of Charles C. Khym P.C.
By: Charles C. Khym, Esq.
|Defendant's attorney:||Andrew M. Cuomo, Attorney General
By: Cohen, Kuhn & Associates
By: Jeanne A. Cygan, Esq.
|Third-party defendant's attorney:|
|Signature date:||May 26, 2010|
|See also (multicaptioned case)|
Mi Suk Kim 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. Kim alleges that on May 13, 2009, at the intersection of West End Avenue and West 61st Street in Manhattan, the car in which she was a passenger, driven by her husband, was struck by a vehicle owned and maintained by the City University of New York ("CUNY"), and driven by one its employees.
In order to determine this motion, the Act sets forth six factors which are to be weighed(2) : 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) defendant was substantially prejudiced; (4) claimant has any other available remedy; (5) the delay was excusable and (6) the claim appears to be meritorious.
The first three factors - whether defendant had notice of the essential facts, had an opportunity to investigate or would be prejudiced by the granting of this motion are often intertwined and may be considered together. See Brewer v State of New York, 176 Misc 2d 337, 342, 672 NYS2d 650, 655 (Ct Cl 1998). In this case, approximately one week after the accident, CUNY's insurer was given notice thereof. Defendant concedes that "CUNY may have been aware that an accident occurred . . . ," but argues that to date, a statement has not been secured from claimant's husband, the driver of the vehicle she was in, nor has defendant received authorizations for "No-Fault records" of claimant. Defendant also asserts that it has not had an opportunity "to canvas the physical area in question . . ." However, defendant makes no argument that it cannot at this time obtain the statement and records in question or canvas the area. Overall, I find that these three factors have been met.
As to an alternate remedy, claimant may have an action against one or both drivers. With regard to excuse, claimant cites "lack of knowledge as to the forum and claim procedure in a case against CUNY . . ." This is not satisfactory for the purposes of the Act. See, e.g., Matter of E.K. v State of New York, 235 AD2d 540 (2d Dept 1997), lv denied, 89 NY2d 815 (1997).
Finally, it must be determined whether the proposed claim appears meritorious. The parties have divergent views of how the accident occurred. Claimant asserts that the vehicle in which she was riding was in the right lane of West End Avenue, proceeding to make a right turn onto West 61st Street, when the vehicle driven by defendant's employee struck the rear passenger side of the car she was in. Defendant, on the other hand, "maintains that the accident was caused by the sudden cut off of the CUNY vehicle by claimant's husband." Defendant also argues that claimant fails to demonstrate serious injury per New York Insurance Law §5102(d). Claimant, who allegedly had "to undergo C3-C4 and C4-C5 anterior radical diskectomies, and interbody fusion using DePuy Eagle Plus titanium plate . . . ," argues that she suffered a significant limitation of use of a body function or system so as to satisfy §5102(d).
While claimant will ultimately need to establish serious injury and negligence on the part of defendant in order to prevail on her claim, I find that for the purposes of this motion, she meets the standard for merit set forth in Matter of Santana v NYS Thruway Authority, 92 Misc 2d 1, 11 (Ct Cl 1977) for the appearance of merit: (i) the claim "must not be patently groundless, frivolous, or legally defective" and (ii) upon consideration of the entire record, including the proposed claim and any exhibits or affidavits, "there is reasonable cause to believe that a valid cause of action exists." See also Sands v State of New York, 49 AD3d 444 (1st Dept 2008).
Accordingly, having reviewed the submissions and having considered the six factors(3) , IT IS ORDERED that motion no. M-77840 be granted and that within forty-five (45) days of the filing of this Decision and Order, claimant shall serve and file her proposed claim, naming only the City University of New York as defendant, in compliance with §§11 and 11-a of the Court of Claims Act.
May 26, 2010
New York, New York
Alan C. Marin
Judge of the Court of Claims
2. See Bay Terrace Coop. Section IV, Inc. v New York State Employees' Retirement Sys. Policemen's and Firemen's Retirement Sys., 55 NY2d 979 (1982); Scarver v State of New York, 233 AD2d 858 (4th Dept 1996).
3. The following were reviewed: claimant's notice of motion annexing proposed claim and its exhibit A; claimant's proposed claim with exhibit A; the Affidavit of Charles C. Khym in support of claimant's motion with exhibits A through D; claimant's affidavit with exhibits A through K; claimant's memorandum of law with exhibits A and B; defendant's affirmation in opposition with exhibit A; and claimant's "Reply Affirmation of Charles C. Khym."