The following papers were read and considered on claimant's motion for an order
restoring the claim and striking defendant's second affirmative defense: 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; Affidavit in Opposition of
Richard B. Friedfertig, Esq., AAG, sworn to August 16 and filed August 18, 2000;
Reply Affirmation of Roger M. Kunkis, Esq., dated August 18 and filed August 21,
2000; the claim, undated and filed February 7, 2000; Answer, dated March 14 and
filed March 15, 2000; and claimant's Verified Bill of Particulars, dated May 11
and filed May 31, 2000.
This claim, filed February 7, 2000, alleges that defendant State of New York
("defendant" or "the State") negligently failed to prevent an accident from
occurring in a shop classroom at Alfred State University (the claim, undated and
filed February 7, 2000 ["claim"], ¶ 4). Claimant Conroy Parchment
("claimant"), a student, was using a woodworking machine (a jointer) in the
classroom when he sustained an injury to his left ring finger, severing a
portion of it (claim, ¶¶ 3, 5). Claimant alleges that his injury was
caused by defendant's failure to supervise and train him properly in the use of
this machinery (claim, ¶¶ 4-5). He seeks $5,000,000 in damages, of
which $1232.90 are specified as medical expenses (claim, ¶¶ 7, 9;
Verified Bill of Particulars, ¶¶ 25-26).
The Court closed claimant's file on July 5, 2000 after the $50 filing fee was
not paid despite an order to do so within 120 days of an order filed on February
29, 2000. Claimant now moves to restore this claim to the calender stating that
the failure to pay the fee was "an oversight" on the part of his attorney
(Affirmation of Roger M. Kunkis, Esq., dated July 11 and filed July 14, 2000
["Kunkis Aff."], ¶ 5; Reply Affirmation of Roger M. Kunkis, Esq., dated
August 18 and filed August 21, 2000 ["Reply Aff."], ¶ 2
Claimant further argues that defendant has
shown no prejudice on account of claimant's failure to pay the fee (Kunkis Aff.,
¶ 6; Reply Aff. ¶ 4).
The State opposes claimant's motion to restore, but states that "[i]f
[claimant] is thus presently proffering the filing fee, the defense would not
have an objection, but if as is suggested in the Notice of Motion, there is a
desire to enlarge the time to provide the filing fee to some unspecified time in
the future, then defendant would object" (Affidavit in Opposition of Richard B.
Friedfertig, Esq., AAG, sworn to August 16 and filed August 18, 2000
["Friedfertig Aff."], ¶ 7). Claimant assures the Court that he is not
seeking an enlargement of the time in which to pay the fee and will pay it
immediately if the claim is restored (Reply Aff., ¶ 2).
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, ___
AD2d ___, 707 NYS2d 432; Wilcox v U-Haul Co., 256 AD2d 973). Here, the
motion papers do not suggest any prejudice to defendant upon restoration of this
claim. In fact, since this action accrued on November 30, 1999 (claim, ¶
3), claimant would still be within the allowable time limitations for making a
motion for permission to file a late claim (see, Court of Claims Act
§ 10 ; CPLR 214 ). 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,
Accordingly, upon a review of claimant's motion papers and upon due
deliberation, the Court grants claimant's motion insofar as it seeks to restore
Claim No. 101918 is hereby
restored to the trial calendar of the Honorable Edgar C. NeMoyer upon claimant's
submission of the proper statutory fee within 30 days of receipt of a
file-stamped copy of this Decision and Order.
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.
Claimant's motion also seeks to strike defendant's second affirmative defense,
which alleges that claimant failed to comply with Court of Claims Act § 11
by not properly detailing each item of damages claimed (see,
206.6 [b]) (Kunkis Aff., ¶ 7; Reply Aff. ¶ 6; Answer, ¶ sixth;
Friedfertig Aff., ¶¶ 10-13). Once the fee is paid and the claim thus
restored, claimant may seek this relief by way of motion to the IAS