New York State Court of Claims

New York State Court of Claims
NUNES v. THE CITY UNIVERSITY OF NEW YORK, # 2010-030-544, Claim No. NONE, Motion No. M-77934


Late claim motion granted. Claim alleges slip and fall on debris that had fallen from ceiling in negligently maintained building at CUNY, John Jay College. No affidavit by person with knowledge to rebut factual assertions made by claimant. Description adequate to allow investigation, and no representation made by person with knowledge that investigation attempted and unsuccessful. Motion to treat notice of intention as a claim denied.

Case information

UID: 2010-030-544
Claimant short name: NUNES
Footnote (claimant name) :
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): NONE
Motion number(s): M-77934
Cross-motion number(s):
Claimant's attorney: PATRICK O. FORRESTER, ESQ.
Third-party defendant's attorney:
Signature date: June 8, 2010
City: White Plains
Official citation:
Appellate results:
See also (multicaptioned case)


The following papers were read and considered on claimant's motion:

1-3 Notice of Motion, Plaintiff's [sic] Affidavit in Support by Jennifer Nunes, Claimant, Attorney Affirmation in Support by Patrick O. Forrester, Counsel for Claimant and attached exhibits

4 Affirmation in Opposition by Gwendolyn Hatcher, Assistant Attorney General

Jennifer Nunes alleges in her proposed claim that on December 15, 2007 she slipped, fell and suffered injury on debris that had fallen from the ceiling in a negligently maintained hallway of the City University of New York at John Jay College of Criminal Justice. [Plaintiff's [sic] Affidavit in Support, 2-4, Exhibit 6]. A Notice of Intention to File a Claim was served upon the Attorney General's Office on or about March 13, 2008, and upon the City University of New York, Office of the General Counsel, on the same date, as shown on the received-stamped copy attached to the present motion papers. [See Plaintiff's [sic] Affidavit in Support, Exhibit 1]. Although such Notice of Intention was timely served within ninety (90) days of accrual of the claim, claimant did not thereafter serve her claim upon CUNY and the Attorney General's Office within two (2) years of the accrual date as required. Court of Claims Act 10(3).

In the present motion, claimant moves to have the Court deem the Notice of Intention timely served as a claim [Court of Claims Act 10(8)] or, alternatively, moves for permission to serve and file a late claim. Court of Claims Act 10(6).

Court of Claims Act 10(8)(a) provides in pertinent part that ". . . [t]he court shall not grant . . . [an application for permission to treat the Notice of Intention as a claim] unless: it is made upon motion 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; the notice of intention was timely served, and contains facts sufficient to constitute a claim; and the granting of the application would not prejudice the defendant."

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.

With regard to either prayer for relief, 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) and (8). Here, the applicable statute of limitations assuming a negligence cause of action would be three (3) years. Civil Practice Law and Rules 214. Premised on the asserted date of accrual of December 15, 2007, the motion is timely.

The Court has reviewed the Notice of Intention and finds that while it arguably contains the information necessary for the "contents of a claim" under Court of Claims Act 11(b), including the description of the location, it is presented in unnumbered paragraphs creating pleading issues that this Court finds, in its discretion, would be avoided had the Notice of Intention been better worded and presented. [See 22 NYCRR 206.6]. Indeed, the proposed claim advanced in support of claimant's motion for late claim relief illustrates the point. [See Plaintiff's [sic] Affidavit in Support, Exhibit 6].

Claimant's motion for late claim relief is, however, granted. Although the excuse offered, that counsel for the claimant was out of the office for the latter part of 2009 explains a failure to file a claim at the last minute, it does not explain waiting the entire two (2) years preserved by the timely service and filing of a notice of intention. The absence of an excuse, however, is but one of the factors to be considered, and does not necessarily preclude relief. Bay Terrace Coop. Section IV, Inc. v New York State Employees' Retirement System Policemen's & Firemen's Retirement System, 55 NY2d 979, 981 (1982).

The closely related factors of notice, opportunity to investigate and prejudice to the State, considered together, weigh toward granting claimant's motion. The defendant was personally served with a timely Notice of Intention to File a Claim [Plaintiff's [sic] Affidavit in Support, Exhibit 1], enabling it to commence an investigation and form a theory of defense, concerning what appears to have been a well-documented accident on its premises. [See Plaintiff's [sic] Affidavit in Support, Exhibits 2, 3]. There is no prejudice here.

As to other remedies, none appears available, in that it seems that an attempt was also made to pursue the matter against the City of New York [See Plaintiff's [sic] Affidavit in Support, Exhibits 4, 5].

The appearance of merit is viewed as the most important factor to consider in an application to serve and file a late claim. 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.

As the court noted in Matter of Santana v New York State Thruway Auth., supra, at 10:

"the word 'meritorious' directs the court's attention to the substance of the claim, rather than to the formal sufficiency of the pleadings. The court's concern is not so much whether a particular pleading properly states a cause of action, but whether claimant indeed has a cause of action." (emphasis added).

Not just the proposed claim, but the affidavits and other exhibits presented are reviewed to determine whether the Court should exercise its discretion and grant late claim relief. See Mamedova v City University of New York, 13 Misc 3d 1211(A) (Ct Cl 2006); Richards v State of New York, UID # 2006-036-504, Claim No. NONE; Motion No. M-70768 (Schweitzer, J., March 27, 2006)(1) .]

Counsel for defendant has submitted only her own affirmation in opposition to claimant's motion. Cole v State of New York, 64 AD2d 1023, 1024 (4th Dept 1978)(2) . No rebuttal by a person with knowledge as to the factual assertions made by claimant in her affidavit, and in her proposed verified claim, are included in defendant's submission. Defendant's primary contention is that the description of the location in the claim is not adequately set forth.

Claimant writes in her proposed claim that she was walking in a hallway toward the venue of a seminar at John Jay College, 899 10th Avenue, at approximately 2:40 p.m. when she slipped and fell on debris - a ceiling panel or lighting panel used to cover a lighting fixture - was assisted by other students, assisted by security personnel who retrieved the light fixture cover on which she slipped, and taken to St. Luke's Roosevelt Hospital. [See Plaintiff's [sic] Affidavit in Support, Exhibit 6]. While the specific floor or nearby room number or class seminar is not set forth, this description is clearly sufficiently definite to enable the defendant to investigate the claim and infer a theory of liability. Indeed, there has been no representation made that defendant tried to investigate and was unsuccessful, for example.

Moreover, an incident report is attached to these moving papers and places the fall in the "North Hall" on the "3rd Fl.", and names one student witness. [Ibid. Exhibit 2]. A memorandum dated on the day of the incident further describes the location. [Ibid. Exhibit 3].

Based on the foregoing, and after carefully balancing the pertinent factors, claimant's motion for permission to serve and file a late claim [M-77934] is hereby granted. Claimant is directed to serve and file a claim similar to the one proposed in accordance with the relevant provisions of the Court of Claims Act and the Uniform Rules for the Court of Claims, including those pertaining to manner of service and payment of the filing fee, within forty (40) days of the filing date of this decision and order.

June 8, 2010

White Plains, New York


Judge of the Court of Claims

1. "[D]efendant confuses the burden imposed on a putative claimant who seeks an exercise of the court's discretion pursuant to 10(6) with the standards applicable to a timely-interposed claim as set forth in 11(b), which sets forth the required contents of a claim. The purpose of the 11(b) requirements is to provide the State with notice, within the applicable period as set forth in 10, of the facts and circumstances underlying the claim so that a prompt investigation may be performed . . . (citations omitted). A claimant seeking permission to late file, on the other hand, by definition, has not served a document complying with 11(b) which affords the opportunity for a prompt investigation. The required analysis under 10(6) is aimed at determining whether the court should exercise its discretion and allow the claim to proceed despite claimant's failure to have timely served a proper document."

2. "When answering affidavits are not produced, the facts alleged in the moving affidavits will be taken by the court as true . . . (citation omitted)."