Ober v. City Univ. of N.Y.

The following papers numbered 1-3 were read and considered by the Court on movant’s late claim application and oral argument was heard on February 1, 2018:Notice of Motion, Attorney’s Supporting Affirmation and Exhibits               1Defendant’s Affirmation in Opposition            2Reply Affirmation               3DECISION AND ORDER

*1 The proposed claim¹ alleges that on March 17, 2017, at approximately 5:45 p.m., at the Queens Campus of the City University of New York (CUNY) at 65-30 Kissena Blvd., Queens, New York, on a paved area leading to lot 3, the parking lot closest to 153rd Street and Reeves Avenue, movant tripped and fell due to a defect in the pavement (Movant’s Ex. A). The alleged defect is described as a broken, depressed, uneven and sloped area of pavement. The proposed claim further alleges that movant sustained a fractured right ankle and injuries to her left knee and her shoulders.Four photographs of the alleged defect were attached to the proposed claim. Two additional photographs were submitted with movant’s motion papers as Exhibit D. All of the photographs, however, were not discernible; therefore the Court requested that movant provide the Court and defendant with clear copies of the photographs. At oral argument, six photographs were offered by movant and were marked by the Court as Court Exhibits 1 through 6.In considering a late claim application, Court of Claims Act §10 (6) requires that the Court consider, among other relevant factors: (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 to be meritorious; (5) whether the failure to file or serve a timely claim or serve a timely notice of intention resulted in substantial prejudice to the State; and (6) whether the movant has another available remedy. The presence or absence of any one factor is not determinative and the list of factors is not exhaustive (see Bay Terrace Coop. Section IV v. New York State Employees’ Retirement Sys. Policemen’s & Firemen’s Retirement Sys., 55