New York State Court of Claims

New York State Court of Claims

KREGEL v. THE STATE OF NEW YORK, #2000-001-057, Claim No. 101873, Motion No. M-62039


Synopsis


Claimant's motion for an order restoring the claim is granted.

Case Information

UID:
2000-001-057
Claimant(s):
KAREN KREGEL
Claimant short name:
KREGEL
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
101873
Motion number(s):
M-62039
Cross-motion number(s):

Judge:
Susan Phillips Read
Claimant's attorney:
Bauman & Kunkis, P.C.By: Roger M. Kunkis, Esq, of Counsel
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney GeneralBy: Alan Berkowitz, Esq., Assistant Attorney General, Of Counsel
Third-party defendant's attorney:

Signature date:
October 24, 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 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, 2000.

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 § 11-a),[*] 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.


October 24, 2000
Albany, New York

HON. SUSAN PHILLIPS READ
Judge of the Court of Claims




[*]
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.