|Claimant(s):||SOPHIA CHINEMEREM IHUOMA EZE|
|Claimant short name:||EZE|
|Footnote (claimant name) :|
|Defendant(s):||THE CITY UNIVERSITY OF NEW YORK|
|Footnote (defendant name) :||The caption has been amended to reflect that: (1) in claims based on the actions of the personnel of Brooklyn College, the properly named defendant is the City University of New York; and (2) the Court of Claims does not have jurisdiction over the individual persons named as defendants in claimant's papers.|
|Judge:||Alan C. Marin|
|Claimant's attorney:||Sophia Chinemerem Ihuoma Eze, Pro Se|
|Defendant's attorney:||Andrew M. Cuomo, Attorney General
By: Gwendolyn Hatcher, Esq., AAG
|Third-party defendant's attorney:|
|Signature date:||October 4, 2010|
|See also (multicaptioned case)|
Claimant Sophia Chinemerem Ihuoma Eze moves for permission to file a late claim pursuant to §10.6 of the Court of Claims Act (the "Act").
Ms. Eze's proposed claim arises from a December 2, 2008 incident which occurred while she was enrolled as a student at Brooklyn College, and she alleges as follows: On that date, she went to the school's security office to report that she suspected she was "being defamed" on myspace.com by her ex-roommates, and that she suspected she was "being surveyed in her room by the landlady and her guests . . ." While she was making the report, a school psychologist was called, and after she was asked various questions, Brooklyn College personnel called an ambulance. Thereafter, she was "taken by EMS against her will" to King's County Psychiatric Hospital, where she was "held . . . against [her] will for two weeks . . ." According to claimant, this caused her to miss exams, resulting in the loss of a scholarship and rendering her student visa invalid.
Claimant essentially asserts that Brooklyn College personnel should not have called an ambulance, maintaining that "there was nothing psychologically or mentally wrong with her . . ."* * *
In order to determine this motion, six factors enumerated in the Act must be considered, i.e., 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 factors are not necessarily exhaustive, nor is the presence or absence of any particular factor controlling.(2)
With regard to 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). Brooklyn College personnel were certainly aware of the incident at the college on December 2, 2008 (although it is unclear whether they had notice of what subsequently happened in the ambulance with the EMS and then at King's County Psychiatric Hospital). In any event, defendant does not dispute that these factors have been met.
With regard to an alternate remedy, claimant states in her papers that she has conferred with legal referral services and attorneys about commencing an action against the New York City Health and Hospitals Corporation, although the viability of such a cause of action is unknown. As to excuse, claimant states, inter alia, that she was told by the Brooklyn Bar Association that she should pursue her claim against defendant here by filing a claim with the Public Advocate's Office. This is not an excuse recognized 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 claim appears meritorious. Ms. Eze's claim contains various causes of action alleging intentional torts, specifically: false arrest, defamation, libel and slander. As her complaint in this Court is that Brooklyn College personnel should not have called an ambulance, it does not appear that the foregoing causes of action could lie against the City University of New York. But in any event, the one year statute of limitations on these causes of action expired on December 2, 2009 (see CPLR §215), and §10.6 of the Act specifically provides that a late claim motion may not be granted after the relevant statute of limitations has expired. To the extent that Ms. Eze's proposed claim contains causes of action arising under 42 U.S.C. §1983, this Court lacks jurisdiction as a §1983 claim may not be pursued against the State of New York in the Court of Claims. See Brown v State of New York, 89 NY2d 172 (1996). To the extent that claimant alleges denial of due process under the New York State constitution, she has failed to identify what due process she was owed by the City University of New York, or how it was denied. Aside from the foregoing, Ms. Eze has supplied no legal authority to suggest that she has a cause of action against the City University of New York based on the calling of an ambulance by personnel at Brooklyn College.
In view of the foregoing, I am constrained to find that claimant has failed to demonstrate merit for the purposes of the Act. See Sands v State of New York, 49 AD3d 444 (1st Dept 2008).
Accordingly, having considered the six factors in view of the parties' submissions(3) , IT IS ORDERED that motion no. M-78494 be denied.
October 4, 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 with affidavit in support and proposed claim; defendant's affirmation in opposition with exhibit A; claimant's submission sent by facsimile to the Court on September 22, 2010; claimant's submission sent by UPS and delivered to the Court on September 30, 2010; and claimant's submission sent by facsimile to the Court on October 2, 2010.