Opinion
# 2016-016-056 Claim No. 124801 Claim No. 126854 Motion No. M-89235 Cross-Motion No. CM-89333
10-25-2016
SANDRA SHARIEF v. THE STATE OF NEW YORK, THE CITY UNIVERSITY OF NEW YORK (CUNY), and MEDGAR EVERS COLLEGE
Figeroux & Associates By: Brian Figeroux, Esq. Eric T. Schneiderman, Attorney General By: Suzette C. Rivera, AAG
Synopsis
Case information
| UID: | 2016-016-056 |
| Claimant(s): | SANDRA SHARIEF |
| Claimant short name: | SHARIEF |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK, THE CITY UNIVERSITY OF NEW YORK (CUNY), and MEDGAR EVERS COLLEGE |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 124801, 126854 |
| Motion number(s): | M-89235 |
| Cross-motion number(s): | CM-89333 |
| Judge: | Alan C. Marin |
| Claimant's attorney: | Figeroux & Associates By: Brian Figeroux, Esq. |
| Defendant's attorney: | Eric T. Schneiderman, Attorney General By: Suzette C. Rivera, AAG |
| Third-party defendant's attorney: | |
| Signature date: | October 25, 2016 |
| City: | New York |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Sandra Sharief, on October 7, 2013, fell on the campus of Medgar Evers College, where she was a student. On or about December 16, 2013, claimant served a notice of intention to file a claim on the Attorney General's Office and the City University.
Medgar Evers is a senior college of the City University of New York. The Court of Claims has jurisdiction for lawsuits sounding in tort or contract against the senior colleges of the City University pursuant to section 6224 of the Education Law.
Section 10.3 of the Court of Claims Act (the "Act") provides that a claim be filed with the Court and served on the Attorney General and the City University within 90 days of when the cause of action accrued, unless a notice of intention to file a claim is served on the Attorney General and the City University, in which case the 90-day window is extended to two years for submission of the claim itself.
A notice of intention to file a claim does not have to be filed with the Court.
However, Ms. Sharief did not submit her claim within such two-year period, and now seeks redress from the Court. Section 10 (6) of the Court of Claims Act provides a mechanism for a litigant to apply for permission to file a late claim; section 10 (8) permits a notice of intention to file a claim to be treated as a claim. For its part, the defendant cross moves for dismissal.
The Court will refer to "defendant" in the singular.
There are two claim numbers assigned to Ms. Sharief's action: claim No.124801 and claim No. 126854. They are both dated June 24, 2014 and are apparently identical. M-89235 and CM-89333 are matched with claim No. 124801, and other references in this matter are also to claim No.124801.
Section 10 (8) of the Act
Section 10 (8) (a) provides:
"A claimant who timely serves a notice of intention but who fails to timely serve or file a claim may, nevertheless, apply to the court for permission to treat the notice of intention as a claim. The court shall not grant such application unless: [it is made within the applicable CPLR article 2 time period]; 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."
The factual sufficiency is governed by section 11 (b) of the Act, which requires that a personal injury claim contain where and when the claim arose, its nature and the items of injuries sustained (Tulger Const. Co. v State of New York, 42 Misc 3d 1224 [A] [Ct Cl 2013]).
In her notice of intention to file a claim, Sharief's fall is described as occurring as she was "walking from class at Medgar Evers College, located at 1150 Carroll Street in Brooklyn . . ." - - there is no additional detail on where she fell. Such description is insufficiently particular and the move to convert the pleading to a claim under section 10 (8) cannot be sustained (Smith v State of New York, UID No. 2016-040-037 [Ct Cl, McCarthy, J., June 1, 2016]; Triani v State of New York, 44 AD3d 1032 [2d Dept 2007], reversing 2006 WL 6067589 [Ct Cl 2006]; Cobin v State of New York, 234 AD2d 498 [2d Dept 1996]).
Paragraph 9 of exhibit A to claimant's Notice of Motion (see the closing footnote on the parties' submissions).
Section 10 (6) of the Act
In deciding an application for permission to file a late claim under section 10 (6) of the Act the Court must consider whether: (i) defendant had notice of the essential facts constituting the claim; (ii) defendant had an opportunity to investigate the circumstances underlying the claim; (iii) defendant was substantially prejudiced; (iv) claimant has any other available remedy; (v) the delay was excusable; and (vi) the claim appears to be meritorious. These statutory elements are to be evaluated in their totality.
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).
Given that the notice of intention was served on the City University a little more than two months after the accident, defendant had fairly immediate notice that on October 7, 2013, Ms. Sharief had fallen on the Medgar Evers campus - - but not of the "essential facts" if it did not know where claimant had her accident. Paragraph 3 of the application for a late claim states that Ms. Sharief was "a student on premises classroom [sic] located at Medgar Evers College located at 1150 Carroll Street in the Borough of Brooklyn . . . when she slipped and fell, as a result of the slippery tiled floor at Medgar Evers College."
Without knowledge of the location, defendant can not investigate the underlying circumstance and would be prejudiced in defending the matter. Claimant has not submitted information to show otherwise; no incident report has not been submitted. As Judge Francis T. Collins of this Court stated in denying an application for a late claim, "[G]eneralized descriptions of the place of an accident have been held insufficient to permit the State to investigate its liability, which is the guiding principle in determining the sufficiency of a claim [citations omitted]" (Gremer v State of New York, UID No. 2016-015-147 [June 16, 2016] )
The next factor relates to the availability of an alternate remedy. The sidewalk is part of the college's responsibility (Locario v State of New York, 90 AD3d 547 [1st Dept 2011]); and as a public way, may be the case even if a contractor had caused the defect or condition (Rothstein v State of New York, 284 AD2d 130 [1st Dept 2001]). As for the factor covering whether there was a valid excuse for delay, law office problems do not satisfy the statute, which would generally require some kind of incapacitating illness on the part of the claimant (Goldstein v State of New York, 75 AD2d 613, 614 [2d Dept 1980]; Conroy v State of New York, 192 Misc 2d 71 [Ct Cl 2002]).
With regard to merit, the First Department has stated that "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]). A failure to specify a factual basis for a claim (such as by not giving the location of a slip and fall) has been held to be a failure to demonstrate that such is meritorious (Olsen v State of New York, 45 AD3d 824 [2d Dept 2007]; Gremer, supra).
Therefore, having considered the six factors that enter into whether an application for a late claim is to be granted under section 10 (6) of the Act, the Court is constrained to conclude that there is an insufficient basis to do so. * * *
In view of the foregoing, and having reviewed the submissions of the parties, IT IS ORDERED that motion No. M-89235 is denied, cross motion CM-89333 is granted, and claim Nos. 124801 and 126854 are dismissed.
The following were reviewed: From claimant - - a Notice of Motion with papers which were effectively an affirmation, but were also labeled "Notice of Motion" (with exhibits A through D); an Affirmation in Opposition to Notice of Cross Motion. Claimant also submitted a letter to the Court, dated October 5, 2016. From defendant, a Notice of Cross Motion with an Affirmation in Support of Cross-Motion and In Opposition to Claimant's Motion. --------
October 25, 2016
New York, New York
Alan C. Marin
Judge of the Court of Claims