Opinion
# 2015-016-049 Claim No. None Motion No. M-86794
08-10-2015
FRANCISCO ECHEVARRIA v. CITY UNIVERSITY OF NEW YORK
Pollack Pollack Isaac & De Cicco By: Brian J. Isaac, Esq. Eric T. Schneiderman, Attorney General No Appearance
Synopsis
Case information
| UID: | 2015-016-049 |
| Claimant(s): | FRANCISCO ECHEVARRIA |
| Claimant short name: | ECHEVARRIA |
| Footnote (claimant name) : | |
| Defendant(s): | CITY UNIVERSITY OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | None |
| Motion number(s): | M-86794 |
| Cross-motion number(s): | |
| Judge: | Alan C. Marin |
| Claimant's attorney: | Pollack Pollack Isaac & De Cicco By: Brian J. Isaac, Esq. |
| Defendant's attorney: | Eric T. Schneiderman, Attorney General No Appearance |
| Third-party defendant's attorney: | |
| Signature date: | August 10, 2015 |
| City: | New York |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Francisco Echevarria moves here for permission to file a late claim under section 10 (6) of the Court of Claims Act (the "Act"), arising out of an August 25, 2014 accident when his vehicle was struck by one owned by the City University of New York (CUNY), Lehman College.
The necessity for this motion, which is unopposed, came about because the claim of Mr. Echevarria was originally served upon the Corporation Counsel of the City of New York and Lehman College. Lehman is a senior college of the City University, and law suits for personal injury against the senior colleges of CUNY come within the jurisdiction of the Court of Claims by chapter 305 of the Laws of 1979; therefore service must be made upon the Attorney General of the State (as well as upon CUNY) within 90 days. To that end, the sole proper party is the City University of New York, and the Court has sua sponte amended the caption to reflect such.
See section 11(a) (ii) of the Act.
Under section 10 (6) of the Act, in deciding a late claim motion, six factors must be considered, although the presence or absence of any one is not decisive: 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) the delay was excusable; (5) claimant has any other available remedy; and (6) the claim appears to be meritorious.
See Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's & Firemen's Retirement Sys., 55 NY2d 979 (1982); Scarver v State of New York, 233 AD2d 858 (4th Dept 1996).
A letter from Mr. Echevarria's lawyer, dated April 15, 2015, was sent to the Office of the Attorney General, stating that his client had been in an August 25, 2014 accident with a Lehman College vehicle and enclosed the police accident report - - the MV-104AN. Under the Act, notice does not attach because there was some knowledge of the accident at the agency or college when it occurred. See generally, Conroy v State of New York, 192 Misc 2d 71 (Ct Cl 2002).
Exhibit F to claimant's Affirmation in Support.
Opportunity to investigate and prejudice are closely linked and can be considered together. While notice was not given within a reasonable period of time, a sufficient amount of information from August 25, 2014 was preserved and available for the defense of the case. This includes the police report, which contains the statements of the two drivers and a diagram of the vehicles. See Wolf v State of New York, 140 AD2d 692 (2d Dept 1988). The Court therefore concludes that defendant has had the opportunity to investigate the matter and has not been prejudiced by the passage of time.
Brewer v State of New York, 176 Misc 2d 337 (Ct Cl 1998).
Echevarria fails to satisfy the next factor covering whether the delay in filing was excusable. Error as to the proper party to sue or serve, or as to the legal status of an entity is not a valid excuse for the purposes of section 10 (6). See for example, Imoka v State of New York, UID No. 2005-030-923 [Ct Cl, Scuccimarra, J., Sept 28, 2005]; compare Goldstein v State of New York, 75 AD2d 613 (2d Dept 1980). As for alternate remedy, on balance, claimant satisfies this factor: while Echevarria did notify his own insurer, the named insurer for the other vehicle was the City University of New York, and CUNY's policy limit is one million dollars (exhibits J and K to claimant's Affirmation in Support).
The First Department has stated: "To be meritorious, a claim must not be patently groundless, frivolous or legally defective, and the record as a whole must give reasonable cause to believe that a valid cause of action exists (citation omitted)" (Sands v State of New York, 49 AD3d 444 [2008]). With the information we have, especially from the MV-104AN, the Sands standard is complied with - - Mr. Echevarria has demonstrated the appearance of merit.
In view of the foregoing, and having considered the statutory factors and what was
submitted, IT IS ORDERED that motion No. M-86794 is granted. Within sixty (60) days of the filing of this Decision and Order, claimant shall serve and file a verified claim in compliance with the Court of Claims Act, including the payment of a filing fee in accordance with section 11-a thereof.
The following was reviewed: from claimant - - a Notice of Motion and Affirmation in Support (with exhibits A through O); as noted, no papers in opposition were filed.
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August 10, 2015
New York, New York
Alan C. Marin
Judge of the Court of Claims