Brinkley v. City University of New York
| Decision Date | 17 March 1983 |
| Citation | 92 A.D.2d 805,460 N.Y.S.2d 53 |
| Parties | , 9 Ed. Law Rep. 1369 Deborah C. BRINKLEY, Claimant-Respondent, v. CITY UNIVERSITY OF NEW YORK, Defendant-Appellant. |
| Court | New York Supreme Court — Appellate Division |
S. Weinraub, New York City, for claimant-respondent.
M.S. Buskus, Albany, for defendant-appellant.
Before SULLIVAN, J.P., and SILVERMAN, FEIN and ALEXANDER, JJ.
Order, Court of Claims of the State of New York, 113 Misc.2d 732, 449 N.Y.S.2d 897, entered April 26, 1982, granting claimant's motion to dismiss the third and fourth affirmative defenses of the answer, unanimously reversed, on the law, without costs or disbursements, and the motion denied, such denial being without prejudice to a motion for late filing relief.
This claim arises out of an incident which occurred on March 26, 1981, when claimant was allegedly struck by a falling metal closet in a Hunter College dormitory. Since CUNY is subject to the same time limitations as apply to state agencies, and it is conceded that neither a claim nor a notice of intention to file a claim was filed within 90 days of the accrual of the claim, as is required (Education Law § 6224[4], Court of Claims Act § 10[3] ), the claim was untimely. (Jones v. City University of New York, 57 N.Y.2d 984, 457 N.Y.S.2d 235, 443 N.E.2d 483 [1982].) Moreover, claimant failed to serve CUNY. Service upon the Attorney General, CUNY's attorney, is not service upon CUNY. (See Gold v. City of New York, 80 A.D.2d 138, 437 N.Y.S.2d 973.) In addition to the usual service and filing requirements imposed by the Court of Claims Act, in any claim brought against it, CUNY must also be served with any claim or notice of intention to file a claim. (See Jones v. City University of New York, supra; Education Law § 6224[2] Ch. 711, L.1982, eff. July 22, 1982.) This disposition is without prejudice to an application for late filing relief (Court of Claims Act § 10[6] ).
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