Opinion
No. M–85753.
03-11-2015
XIU FEN LIU individually and as Administrator of the Estate of Chun Hsien Deng, deceased, Claimants, v. BARUCH COLLEGE, City University of New York, Defendant.
Friedlander & Friedlander, PC, by William S. Friedlander, Esq., for Claimants. Eric T. Schneiderman, Attorney General, by Cheryl M. Rameau, AAG, for Defendant.
Friedlander & Friedlander, PC, by William S. Friedlander, Esq., for Claimants.
Eric T. Schneiderman, Attorney General, by Cheryl M. Rameau, AAG, for Defendant.
Opinion
ALAN C. MARIN, J.
This matter arose from the death of Chun Hsien Deng, an 18–year–old student at Baruch College, who died on December 9, 2013 while on a trip to Pennsylvania with the Pi Delta Psi fraternity, which has a chapter at Baruch, a senior college of the City University of New York. Mr. Deng, known as Michael, was not a member of the fraternity, but was pledging it at the time of his death. The papers submitted on Deng's behalf state that “Michael may have been a victim of hazing.”
Claimant's notice of motion states that she seeks an order “granting leave to file a late Notice of Intention to file claim,” and attaches an “Application for Leave to File Notice of Intention to File Claim” together with a proposed claim.
For ease of reference, this decision will refer to the claimants in the singular as “claimant” or Ms. Liu.
Defendant City University of New York opposes the motion on procedural and substantive grounds. With respect to the former, paragraph 3 of the affirmation in opposition, dated November 10, 2014, provides that: “there is no affidavit from movant or letters of administration annexed to the motion papers.” By letter dated November 17, 2014, claimant's counsel submitted a copy of the Letters of Limited Administration, issued by the Surrogate's Court of Queens County and dated August 27, 2014.
One cause of action potentially obtaining herein lies with the distributee(s) of the Estate of Chun Hsien Deng for monetary losses resulting from his death. Section 10.2 of the Court of Claims Act (the “Act”) requires that such a claim be brought in this Court within 90 days of the appointment of an administrator , or in this case, on or about November 25, 2014. Claimant's papers, including a “proposed claim,” were served on October 6, 2014; however, the proposed claim was not verified, and the proper course here is to consider it as part of the late claim motion.
If a notice of intention to file a claim is served, then a claim must be filed and served within two years of the death of the decedent. [Section 10.2].
Defendant apparently does not object to the fact that claimant characterizes her motion as one seeking permission to file a late notice of intention, rather than permission to file a late claim—see footnote 2 to defendant's affirmation in opposition. The granting of a late claim is governed by the six factors set forth in section 10.6 of the Act. The six factors must be considered by the Court, but all six do not have to be satisfied. They are as follows: whether the defendant was substantially prejudiced by the passage of time, had notice of the claim's essential facts and the opportunity to investigate the matter; whether claimant has an excuse for the late filing and if there is another available remedy; and finally, whether the claim appears meritorious.
Scarver v. State of New York, 233 A.D.2d 858 (4th Dept 1996).
As for its substantive opposition, defendant focuses on the appearance of merit, which it characterizes as, in general, the most important statutory factor. Defendant argues that colleges do not have a duty to protect its students from dangerous activities, citing, among others, Pasquaretto v. Long Is. Univ., 106 AD3d 794 (2d Dept 2013), which also involved an injury that occurred during a fraternity initiation. The appellate court affirmed dismissal of the action, ruling that Mr. Pasquaretto failed to sufficiently allege that the involvement of the university in the fraternity's initiation process was of a degree that created a duty, citing Rothbard v. Colgate Univ, 235 A.D.2d 675 (3d Dept 1997), also referenced by the defendant in its opposition papers.
The Second Circuit affirmed summary judgment for Paul Smith College in a case in which heavy off-campus student drinking ending up playing a major role in the death of a student in a snowmobile accident that then occurred on college grounds. [Guest v. Hansen, 603 F3d 15 (2010) ]. See also Talbot v. New York Inst. of Tech., 225 A.D.2d 611 (2d Dept 1996).
The final case cited by defendant was Lloyd v. Alpha Phi Alpha Fraternity, 1999 WL 47153 (ND NY), in which the federal court was not persuaded by a number of charts showing the financial problems of the fraternity, but which could not be connected to any involvement by the university.
Defendant submits an affidavit from the Director of Student Life at Baruch, Shadia Sachedina to the effect that: the college had no knowledge of the Pennsylvania trip, the president and treasurer of the Pi Delta Psi attended an anti-hazing workshop less than three months before the trip and 11 members of the fraternity signed an anti-hazing agreement, a sample of which is attached. [Def aff in opp, exhs A and B].
Ms. Liu argues that a police investigation is still pending and that some information is shielded by the federal Family Educational Rights and Privacy Act, 20 USC § 1232g. That law allows the release of student information by court order. See Matter of Newfield Cent. School Dist. v. New York State Div of Human Rights, 66 AD3d 1314 (3d Dept 2009).
Claimant also points out that on December 20, 2013, the college permanently banned Pi Delta Psi. (It is unclear whether the ban was from the college or extended City University-wide). Because it was undoubtedly not based on post-incident facts, that a post-incident action was taken does not implicate the public policy at issue, for example, in Caprara v. Chrysler Corp., 52 N.Y.2d 114 (1981).
While the determination of the duty owed to Michael in view of Baruch College's involvement and level of information (much of which claimant has so far been unable to obtain) is not at this point discernible, I conclude that Ms. Liu has demonstrated the appearance of merit. For a claim to appear meritorious, it “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.” [Sands v. State of New York, 49 AD3d 444 (1st Dept 2008) ].
To continue with the other statutory criteria, claimant has offered no excuse for the late filing and Ms. Liu does have an alternate remedy against the fraternity, which, according to the defendant, is organized under the Not–For–Profit Corporation Law. The other three factors—notice, substantial prejudice, and the opportunity to investigate—are interconnected and may be considered together. [Brewer v. State of New York, 176 Misc.2d 337 (Ct Cl 1998) ]. Defendant had notice—a police investigation was undertaken and days after Michael's death, the fraternity was banned from campus. The college has, as noted, more facts about this matter than does claimant, and information held by the police or shielded by the federal privacy law will ultimately, for the most part, become available. Thus, in consideration of the six factors of section 10.6 of the Act, this Court concludes that Xiu Fen Liu, individually and as Administrator of the Estate of Chun Hsien Deng, is entitled to submit a late claim.
In view of the foregoing, and having reviewed the submissions of the parties, IT IS ORDERED that motion No. M–85753 be granted, and that within forty-five (45) days of the filing of this Decision and Order, claimant shall serve and file a verified claim in compliance with sections 11 and 11–a of the Court of Claims Act.
The following were reviewed: claimant's Notice of Motion and Application for Leave to File Notice of Intention to File Claim (with attached Proposed Claim); and defendant's Affirmation in Opposition (with exhibits A and B); and claimant's letter with attachments.
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