Opinion
# 2012-049-040 Motion No. M-81646
08-14-2012
ANTONIO WATSON and DAVID HACKETT v. CITY UNIVERSITY OF NEW YORK and NEW YORK CITY COLLEGE OF TECHNOLOGY
Synopsis
Late claim application is denied. The proposed claim concerning a loan made by claimant to his grandson so that he could continue his education at New York City College Technical College lacked merit, where claimant failed to establish that CUNY owed him a duty care. Case information
UID: 2012-049-040 Claimant(s): ANTONIO WATSON and DAVID HACKETT Claimant short name: WATSON/HACKETT Footnote (claimant name) : Defendant(s): CITY UNIVERSITY OF NEW YORK and NEW YORK CITY COLLEGE OF TECHNOLOGY Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): None Motion number(s): M-81646 Cross-motion number(s): Judge: David A. Weinstein Claimant's attorney: David Hackett, Pro Se Eric T. Schneiderman, NYS Attorney General Defendant's attorney: By: Robert J. Schwerdt, Assistant Attorney General Third-party defendant's attorney: Signature date: August 14, 2012 City: Albany Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
Claimant David Hackett, appearing pro se, moves the Court for permission to serve and file a late claim pursuant to Court of Claims Act § 10(6). The verified proposed claim alleges that the Financial Aid Office at New York City College of Technology of the City University of New York ("CUNY") was negligent in its failure to advise student Antonio Watson (Hackett's grandson) and Watson's mother of the proper procedure to obtain financial aid, and that as a result, Watson was forced to borrow funds from Hackett in order to continue his education. The proposed claim seeks $6,000, which represents the "funds expended . . . ." It lists an accrual date of September 2011, with no specific day given.
At the outset, I note that Hackett has submitted this application both on his own behalf and on behalf of Watson. While Watson has signed the proposed verified claim, only Hackett has signed the notice of motion, and only he has submitted an affidavit in support thereof. Hackett cannot, however, move pro se on behalf of another individual. That is because "New York law prohibits the practice of law in this State on behalf of anyone other than himself or herself by a person who is not an admitted member of the Bar . . ." (People ex rel. Field v Cronshaw, 138 AD2d 765 [2d Dept 1988], citing Judiciary Law §§478, 484; see also New York Criminal & Civ. Cts. Bar Assn. v Jacoby, 61 NY2d 130, 136 [1984] ["no natural person, whether or not a partner or associate of a multistate firm, may practice law in New York State unless he or she is admitted to practice here"]). There is no indication in the record that Hackett is an attorney, and thus he cannot bring a motion on Watson's behalf.
Even if Hackett were a member of the bar, under the circumstances it appears he would be unable to represent both Watson and himself (cf. Gasoline Expwy v Sun Oil Co. of Pa., 64 AD2d 647 [1978], affd 47 NY2d 847 [1979] [plaintiff attorney, who would be witness in lawsuit, cannot represent both corporate plaintiff, and himself pro se]).
Accordingly, the Court cannot consider this motion to the extent that it seeks permission a late file a claim on behalf of named claimant Antonio Watson.
With respect to Hackett's application on his own behalf, Court of Claims Act § 10 (6) sets forth six factors to be considered on a late claim motion (see Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's & Firemen's Retirement Sys., 55 NY2d 979, 981 [1982]). Those factors are: whether the delay in filing the claim was excusable; whether defendant had notice of the essential facts constituting the claim; whether defendant had an opportunity to investigate; whether defendant was substantially prejudiced; whether the claim appears to be meritorious; and whether the claimant has any other available remedy. These factors are not necessarily exhaustive, nor is the presence or absence of any particular factor controlling (id.).
Of these factors, the appearance of merit is the most significant, because to permit the filing of a "a legally deficient claim which would be subject to immediate dismissal" would be "futile" (Prusack v State of New York, 117 AD2d 729, 730 [2d Dept 1986]; see also McCarthy v New York State Canal Corp., 244 AD2d 57 [3d 1998] ["in the absence of the appearance of merit to claimant's claim, the request to file a late notice of claim . . . should have been denied"]). The standard to be applied when weighing the apparent merit of a proposed claim is articulated in Matter of Santana v New York State Thruway Auth. (92 Misc 2d 1 [Ct Cl 1977]). To appear meritorious, a claim "must not be patently groundless, frivolous or legally defective," and the record as a whole, including the proposed claim and any affidavits or exhibits, must give "reasonable cause to believe that a valid cause of action exists" (Id. at 11).
As set forth above, in the proposed claim it is alleged that CUNY was negligent in its failure to advise Watson and his mother of the proper procedure to obtain financial aid, and as a result he was forced to borrow tuition money from his grandfather Hackett. In order to recover in negligence, however, a claimant must show a "duty of reasonable care owed [to him] by the tort-feasor" (Eiseman v State of New York, 70 NY2d 175, 187 [1987]; see also Hamilton v Beretta U.S.A. Corp, 96 NY2d 222, 232 [2001] ["[w]ithout a duty running directly to the injured person there can be no liability in damages . . ."]). Where the negligence alleged is a misrepresentation or failure to disclose, "the relationship of the parties . . . must be such that . . . the one has the right to rely upon the other for information, and the other giving the information owes a duty to give it with care" (Eiseman, 70 NY2d at 187-188 [citation and quotation omitted). This, in turn, requires either actual privity between the parties, "or something approaching privity, such as conduct on the part of defendant linking defendant to [claimant] which evidences defendant's understanding of [claimant's] reliance" (Id. at 188).
In his proposed claim, Hackett does not remotely meet this standard. Nothing in the pleading, or the e-mail communications appended thereto, references any communications at all between Hackett and defendant; any reliance by Hackett on a statement or failure to disclose by CUNY; any allegation that defendant knew of any such reliance; or any facts indicating that such reliance would have been reasonable. There is, in short, nothing in the claim to show that CUNY owed any duty to Hackett.
Further, Hackett does not allege that CUNY's conduct caused him to lose money personally. Rather, according to the proposed claim he made the independent decision to loan Watson money so his grandson could continue schooling (see Claim ¶ 2). Nothing in the papers before this court indicates that Hackett was under any legal obligation to provide such a loan, and he cannot recover the cost of this voluntary act (see Kelly v State of New York, UID No. 2002-015-249 [Ct Cl, Collins, J., May 8, 2002] [dismissing claim for parent to recover tuition payments; agreement for student to receive tuition payments for National Guard service "was clearly not intended to benefit the parent who was under no legal obligation to pay college tuition costs"] [citation omitted]). Thus, Hackett has suffered no legally cognizable injury as a result of defendant's conduct, and he has no standing to sue(see Matter of MFY Legal Servs. v Dudley, 67 NY2d 706, 708 [1986] [ plaintiff "does not have standing to maintain this proceeding in its own right because it has failed to demonstrate that it has suffered any injury in fact as a result of respondents' actions"]).
Defendant points out that damages are sought in the amount of $6,000 for "funds expected," even though the money was to be a loan, i.e., ultimately to be repaid (Aff. in Opp. ¶ 11).
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Finally, even if Hackett could somehow bring a derivative claim on Watson's behalf, the submissions before me do not demonstrate that such a claim would be viable. Beyond the general representation that his grandson lost money "[b]ecause of the negligence of officials at the Financial Aid office at CITY TECH" (Aff. in Supp. ¶ 4), the motion papers do not provide any description as to how CUNY failed to advise Watson or his mother on the "proper process" to obtain financial aid, or why it had this obligation in the first instance (see Demas v Levitsky, 291 AD2d 653, 659 [3d Dept 2002] [dismissing claim by doctoral student against university premised on latter's fiduciary obligation, where "plaintiff has failed to come forward with any factual allegations or evidence to support her claim of a fiduciary relationship"]). A number of emails appended to the application between Rhonda Hackett, Watson's mother, and a CUNY Financial Aid Director do not clarify or lend support to a claim for negligence. Boilerplate assertions of negligence, which do not disclose any specific misstatements or information concealed, cannot serve as the basis for a meritorious claim (see Goldstein v State of New York, 75 AD2d 614, 614 [1980] [claimant's "vague and general allegations of negligence . . . do not set forth a meritorious claim . . ."]).
In sum, I find that Hackett has not established that his proposed claim has the appearance of merit. On this basis, and in the absence of any other factor that would warrant a different result, claimant has failed to show that he should be permitted to file a late claim pursuant to section 10(6) (see Prusack, 117 AD2d at 729-30 [although majority of factors support claimant, application denied because filing legally deficient claim would be futile]; White v State of New York, 161 Misc 2d 938, 943-944 [Ct Cl 1994] [denying late claim which lacked appearance of merit, without specifically addressing other factors]).
In view of the forgoing, it is
ORDERED that motion no. M-81646 be denied.
August 14, 2012
Albany, New York
David A. Weinstein
Judge of the Court of Claims
Papers Considered
1. Claimant's Notice of Motion and Supporting Papers.
2. Defendant's Affirmation in Opposition.