New York State Court of Claims

New York State Court of Claims

EYRE v.THE STATE OF NEW YORK, #2000-001-053, Claim No. 101532, Motion No. M-61996


Synopsis


claimant's motion for an order restoring the claim is granted upon payment of the proper statutory fee.

Case Information

UID:
2000-001-053
Claimant(s):
ARTHUR EYRE
Claimant short name:
EYRE
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
101532
Motion number(s):
M-61996
Cross-motion number(s):

Judge:
Susan Phillips Read
Claimant's attorney:
Cherundolo, Bottar & Leone, P.CBy: Anthony S. Bottar, Esq., Of Counsel
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney GeneralBy: Roger B. Williams, Esq., Assistant Attorney General
Third-party defendant's attorney:

Signature date:
August 31, 2000
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers were read and considered on claimant's motion for an order restoring the claim: Notice of Motion, dated July 7 and filed July 11, 2000; Affidavit in Support of Anthony S. Bottar, Esq., dated July 7 and filed July 11, 2000, with annexed Exhibits A-C; letter response of Roger B. Williams, Esq., AAG, dated July 17 and received July 19, 2000; the claim, dated December 3 and filed December 7, 1999.

Claimant Arthur Eyre ("claimant") was granted permission to file a late claim pursuant to Court of Claims Act § 10 (6) (see, Eyre v State of New York, Ct Cl, unreported decision filed Nov. 16, 1999, Fitzpatrick, J., Motion No. M-59831) and subsequently filed this claim against the State of New York ("the State") on December 7, 1999.[1] The claimant alleges that the negligence and malpractice of personnel employed by State University of New York Health Science Center in Syracuse, Onondaga County, caused him to suffer an anticoagulant-induced condition of thrombocytopenia[2] resulting in, inter alia, amputation of his fingers on both hands, amputation below the knee of his right leg and partial amputation of his left foot (claim, ¶¶ 6-7). The file of this case was closed on May 30, 2000 after claimant failed to submit the statutory filing fee of $50 pursuant to Court of Claims Act § 11-a within 120 days of an order of this Court directing payment. Claimant now seeks permission to restore the case to the trial calendar.

Claimant's present attorney explains that he received an executed notice of substitution for this matter on March 27, 2000, along with voluminous files (Affidavit in Support of Anthony S. Bottar, Esq., dated July 7 and filed July 11, 2000, with annexed Exhibits A-C ["Bottar Aff."], ¶¶ 7-9,14). He promptly filed a "Consent to Change Attorney" with the Court of Claims (id., Exh. B); however, the 120-day demand issued by this Court to claimant's former attorney had been misfiled in the transferred files and was only discovered by the present attorney after the Court advised him that the case had been closed for failure to pay the fee (id., ¶¶ 10-11). The State takes no position on claimant's application to restore the claim and candidly notes that the case has been deemed to meet the criteria set forth in Court of Claims Act § 10 (6) (see, Eyre v State of New York, supra).

Upon review of claimant's motion papers, and upon due deliberation, claimant's motion for restoration is granted. Claim No. 101532 is hereby restored to the trial calendar upon claimant's submission of the proper statutory fee within 30 days of receipt of a file-stamped copy of this order.

August 31, 2000
Albany, New York

HON. SUSAN PHILLIPS READ
Judge of the Court of Claims




[1]
Chapter 412 Part D of the Laws of 1999 amended the Court of Claims Act by adding section 11-a, which requires payment of a fee of fifty dollars to file a claim in the Court of Claims. This provision took effect on December 7, 1999, the day this claim was filed.
[2]
A condition in which there are an abnormally small numbers of blood platelets present in the circulating blood (Stedman's Medical Dictionary, at 1808 [26th ed]).