Charanjit Singh has moved to file a late claim under section 10 (6) of the Court of Claims Act (the "Act") arising from an accident that occurred while he was working for a contractor at the New York City College of Technology, a senior college of the City University of New York (CUNY).

According to the affidavit submitted on behalf of claimant,^[FN2] on February 11, 2013 at about 10:30 or 11:00 a.m., Mr. Singh was working in the basement of New York Tech's building at 300 Jay Street in Kings County as a "helper" for Charan Electrical Enterprises, Inc. installing electrical boxes when he was "suddenly and unexpectedly severely, seriously and permanently injured" (claimant's Affidavit, paragraph 3 of exhibit A, which is the "Notice of Claim").

Paragraph 2 of the claimant's Affidavit provided that such occurred "while attempting to make a hole in an electric box." Paragraph 16 of the Affidavit implies that the box fell (and struck claimant): "It is a question of fact not to be resolved at this initial stage whether the unsecured electrical box fell from any distance and caused injury due to the force of gravity." Other than this information, paragraph 4 of the Notice of Claim is a lengthy catalog of possible acts or omissions without directly connecting them to what happened to Mr. Singh in the basement of the college.

Among the defendants named by the claimant (the caption calls them respondents) are the boards of trustees of CUNY and the State University of New York (SUNY). They are not proper defendants - - either they stand in the shoes of the universities they govern, which are the proper parties, or they are a group of individuals, and individual officers or employees are not subject to suit in this Court. Therefore, the Court strikes the two university boards of trustees from the caption and dismisses them from the case.

A second group of defendants in Mr. Singh's caption are: the City of New York, the City University Construction Fund and the Dormitory Authority of the State of New York. Other than the State itself, only specified entities can be sued in the Court of Claims, such as CUNY's senior colleges or the Thruway Authority. The City University Construction Fund and the Dormitory Authority are not so specified in statute and cannot be sued here. Accordingly, the Court strikes these entities from the caption and dismisses them from the case.

That leaves three entities named by claimant over which the Court of Claims has jurisdiction: the City University of New York, the New York City College of Technology and the State University of New York. As a general proposition, the State University (SUNY), which is an agency of the State of New York, can be sued in this Court, but nothing in claimant's papers points to any involvement by SUNY, and the Court strikes the State University of New York from the caption and dismisses it from the case. When suing CUNY for a cause of action that arose at a senior college, it is unnecessary to name the college in the caption,^[FN3] and the New York City College of Technology is struck from the caption. In sum, the caption has been amended by the Court to reflect that the only proper party against whom this action is brought is the City University of New York, the "defendant."

The Application for a Late Claim

In deciding an application for late claim under section 10 (6), six factors must be considered, although the presence or absence of any particular one is not dispositive:^[FN4] 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) the delay was excusable; (v) claimant has any other available remedy; and (vi) the claim appears to be meritorious.

The first three factors, notice, opportunity to investigate and prejudice, are closely related and can be considered together.^[FN5] Paragraph 7 of defendant's Affirmation in Opposition states that a "notice of intention" was served on June 10, 2013, about a month beyond the 90-day period required by section 10 (3) of the Act.

Mr. Singh maintains that the fire marshall of the City of New York prepared an incident report and that a representative from CUNY was on the scene,^[FN6] but we have neither the incident report nor any documentation about the CUNY representative. With that said, the defendant does not specifically argue that it was prejudiced by the lateness of the notice or that it was unable to investigate, although it notes that claimant failed to detail the placement of the electric box in the basement and how it caused injury to claimant. In any event, the Court concludes that claimant is on the cusp of satisfying these three factors.

Mr. Singh argues, over defendant's opposition, that his delay in filing was excusable because he did not retain counsel until May 31, 2013. Claimant supplies no precedent therefor; satisfying the excuse factor under the Act requires some stronger impediment such as serious illness (see Goldstein v State of New York, 75 AD2d 613 [2d Dept 1980]).

As for the availability of any other remedy, the Dormitory Authority was the owner of the building ^[FN7] , and under two of claimant's causes of action - - sections 240 and 241.6 of the Labor Law - - the owner, per se, is subject to suit thereunder.^[FN8] Singh does not state whether his employer, Charan Electrical Enterprises, is a subcontractor or a general contractor; if the former, Singh could sue the GC in Supreme Court, but overall, claimant has not shown that he has or had no alternate remedy.

The First Department has stated with regard to merit that "To be meritorious, a claim [*2]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]).

Claimant's papers sufficiently convey that Mr. Singh was struck by an electrical box in the basement of 300 Jay Street in Brooklyn on February 11, 2013 at around 10:30 to 11 o'clock in the morning - - they do satisfy the Sands standard for merit.

Section 10 (6) of the Court of Claims Act requires that an application for a late claim be accompanied by a proposed claim that contains the information required by section 11 (b) of the Act, which for a personal injury case is the time and place of occurrence, the nature of the claim and the injuries suffered.

The Court will consider claimant's "Notice of Claim" to be the required proposed claim. Defendant contends that such proposed claim fails to describe the manner of the accident or give a specific location.^[FN9] The Court, as discussed above in the Sands test for merit, regards the manner or nature of the accident as satisfactorily set forth in claimant's papers. Secondly, had Mr. Singh more precisely described where the electric box was situated, section 11 (b) compliance would not have been as close a call, but there is precedent for claimant's level of detail as to the place of occurrence (see Moravec v City University of New York, 32 Misc 3d 681 [Ct Cl 2011]).

In view of the foregoing, and having considered the statutory factors and submissions of the parties,^[FN10] IT IS ORDERED that motion No. M-87111 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 provisions of the Court of Claims Act, including the payment of a filing fee in accordance with section 11-a thereof.