The following papers were read and considered on claimant's motion for an order
restoring the claim: Notice of Motion, dated July 11 and filed July 14, 2000;
Affirmation of Roger M. Kunkis, Esq., dated July 11 and filed July 14, 2000;
Affirmation in Opposition of Alan B. Berkowitz, Esq., AAG, dated August 11 and
filed August 14, 2000; Reply Affirmation of Roger M. Kunkis, Esq., dated August
15 and filed August 17, 2000; the claim, undated and filed January 31, 2000; and
Verified Answer, dated February 17 and filed February 22, 2000.
Claimant Karen Kregel ("claimant") avers that due to the State of New York
("defendant")'s negligent failure to maintain a boardwalk at Jones Beach State
Park in a safe condition, she suffered lacerations and puncture wounds to her
left foot when she stepped on a piece of wood protruding from the boardwalk
(claim, undated and filed January 31, 2000 ["claim"], ¶¶ 4-7). The
Court closed claimant's file on July 5, 2000 after the $50.00 filing fee was not
paid despite an order to do so within 120 days of an order filed on February 18,
Claimant now moves to restore the claim to the calender, stating that the
failure to pay the fee was "an oversight" on the part of claimant's attorney
(Affirmation of Roger M. Kunkis, Esq., dated July 11 and filed July 14, 2000
["Kunkis Aff."], ¶ 4; Reply Affirmation of Roger M. Kunkis, Esq., dated
August 15 and filed August 17, 2000 ["Reply Aff."], ¶ 2 ).
As explanation, counsel for claimant explains that he was not aware of the new
fee requirement (see
, Court of Claims Act §
and that the Court's notice was annexed
to the letter acknowledging receipt of the claim, rather than placed as a top
page ( Reply Aff., ¶ 2 ). Defendant opposes claimant's motion to restore,
stating simply that "[c]laimant's counsel fails to address any excuse for the
failure to timely comply with the filing fee requirements of the act"
(Affirmation in Opposition of Alan B. Berkowitz, ¶ 3).
Like the vacatur of a default judgment, the restoration of a claim lies within
the discretion of a trial court (see generally, Mediavilla v Gurman, 272
AD2d 146; Wilcox v U-Haul Co., 256 AD2d 973). Here, the motion papers do
not suggest any prejudice to defendant on account of the restoration of this
claim. Further, despite the law office failure of counsel for claimant, the
Court recognizes that strong public policy supports deciding matters on their
merits (see, Mediavilla v Gurman, supra; J.R. Stevenson Corp. v
Dormitory Auth. of State of N.Y., 112 AD2d 113, 116).
Accordingly, upon a review of claimant's motion papers and upon due
deliberation, the Court grants claimant's motion to restore this claim. Claim
No. 101873 is hereby restored to the trial calendar of the Honorable Alan C.
Marin upon claimant's submission of the proper statutory fee within 30 days of
receipt of a file-stamped copy of this order.