Mamedova v City Univ. of N.Y.

[*1] Mamedova v City Univ. of N.Y. 2006 NY Slip Op 51775(U) [13 Misc 3d 1211(A)] Decided on August 18, 2006 Ct Cl Schweitzer, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on August 18, 2006
Ct Cl

AYANNA MAMEDOVA, Claimant,

against

THE CITY UNIVERSITY OF NEW YORK, Defendant.



M-71738



For Claimant:

CITAK & CITAK

By: Burton Citak, Esq. and Donald L. Citak, Esq.

For Defendant:

ELIOT SPITZER, ATTORNEY GENERAL

By: Ellen Matowik-Russell, Assistant Attorney General

Melvin L. Schweitzer, J.

This is claimant's motion for permission to file a late claim arising out of a November 15, 2005 incident in which she tripped and fell on torn carpeting in the Foreign Language Lab at the John Jay College of Criminal Justice ("John Jay"). [FN1] Claimant's counsel advises that he was retained in December 2005 and, under the mistaken belief that CUNY was a City agency, prepared a notice of claim pursuant to General Municipal Law § 50-e and served copies on John Jay and the New York City Corporation Counsel on February 2 and 3, 2006, respectively. Copies of the notice of claim were not served on CUNY and the Attorney General until March 31, 2006 (more than 90 days after accrual), after counsel became aware that the Court of Claims Act, not the General Municipal Law, governed civil actions against CUNY senior colleges.

Court of Claims Act § 10(6) grants the court the discretion to allow a claim to be interposed more than 90 days following accrual, upon consideration of all relevant factors, including whether claimant's delay was excusable, whether defendant had timely notice of and [*2]the opportunity to investigate the pertinent allegations, whether defendant would suffer substantial prejudice from an order allowing late filing, whether the proposed claim has the appearance of merit and whether claimant has an alternate remedy.

Defendant opposes the application, alleging that claimant's delay in proceeding properly was not excusable and that the proposed claim lacks the appearance of merit. Defendant's failure to address the notice, opportunity to investigate, lack of prejudice and lack of alternate remedy factors entitles the court to presume that they weigh in favor of granting the motion (Calzada v State of New York, 121 AD2d 988 [1st Dept 1986]; Cole v State of New York, 64 AD2d 1023 [4th Dept 1978]; Fine v State of New York, 10 Misc 3d 1075(A) [Ct Cl, Minarik, J., 2005]). Moreover, defendant does not contest that a notice of claim was served on John Jay within 90 days of the subject incident.

Defendant is correct in asserting that claimant's delay occasioned by counsel's unfamiliarity with Education Law §6224, which provides that personal injury actions accruing at CUNY senior colleges are brought in the Court of Claims, pursuant to the provisions of the Court of Claims Act is not excusable, within the meaning of the statute. That factor weighs against claimant.

Defendant also maintains that the proposed claim does not have an appearance of merit, citing Matter of Santana v New York State Thruway Auth. (92 Misc 2d 1 [1977]), but in presenting its argument in support of that conclusion, it ignores the factual allegations in claimant's affidavit and instead addresses only the proposed claim, as if this were a motion to dismiss a timely served and filed claim for failure to comply with Court of Claims Act § 11(b) or for failure to state a cause of action. Matter of Santana is somewhat of a landmark in Court of Claims jurisprudence; it is the case that defined the meaning of the statutory phrase "whether the claim appears to be meritorious" (Court of Claims Act § 10[6]), and a case that continues to be cited to this day in virtually every decision arising under the statute. Addressing the argument that the inquiry is directed solely at the language of the pleading, Judge Weisberg wrote:

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)

(92 Misc 2d 1, 10). Thus, in considering a motion for permission to file a late claim, the court looks at all of the submitted papers, including affidavits and exhibits, to determine whether a putative claimant has met the statutory burden of "apparent merit" and is not confined to the text of the proposed claim itself.

As this court wrote in Richards v State of New York (Ct Cl, Schweitzer, J., Motion No. M-70768, UID No. 2006-036-504 [March 27, 2006]): [*3]

"defendant 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 (Lepkowski v State of New York, 1 NY3d 201 [2003]; Klos v State of New York, 19 AD3d 1173 [2005], affirming UID No. 2004-013-015; Heisler v State of New York, 78 AD2d 767 [1980]). 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."

Defendant identifies three purported defects in the proposed claim: (1) that it does not state "with specificity" where at John Jay College the Foreign Language Lab is located; (2) that it fails to specify the alleged defect in the carpet; and (3) that it fails to include the items of damage or injury suffered.

Defendant is correct as to the second of these items; however, claimant has remedied that defect by submitting, with her reply papers, a revised proposed claim alleging that claimant was caused to trip and fall as the result of the condition of the carpeting "which was torn and ripped in that portion of the Foreign Language Lab located near and directly in front of the Lab Administrator's office" (Revised Proposed Claim, ¶ 14). That language also addresses defendant's first objection, that the proposed claim did not identify the place where the claim accrued with sufficient specificity, an objection that the court would not have sustained in any event, absent a factual submission from defendant explaining how the allegedly insufficient identification impaired its ability to investigate (see Cannon v State of New York, 163 Misc 2d 623). Finally, the proposed claim clearly and adequately sets forth claimant's alleged injuries.

Accordingly, the motion is granted. Claimant may serve and file her claim (i.e., the revised proposed claim) within 40 days of the filing date hereof, in accordance with the applicable provisions of the Court of Claims Act and the Uniform Rules for the Court of Claims, including payment of the filing fee.

New York, New York

August 18, 2006,

MELVIN L. SCHWEITZER

Judge of the Court of Claims Footnotes

Footnote 1:The court considered the Notice of Motion, Affidavit, Affirmation and Exhibits; defendant's Affirmation in Opposition and claimant's Reply Affirmation and Exhibits.