New York State Court of Claims

New York State Court of Claims

PARCHMENT v. THE STATE OF NEW YORK, #2000-001-058, Claim No. 101918, Motion No. M-62053


Synopsis


Claimant's motion is granted insofar as it seeks to restore this claim upon submission of the proper statutory fee.

Case Information

UID:
2000-001-058
Claimant(s):
CONROY PARCHMENT
Claimant short name:
PARCHMENT
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
101918
Motion number(s):
M-62053
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: Richard B. Friedfertig, Esq., Assistant Attorney General, Of Counsel
Third-party defendant's attorney:

Signature date:
October 27, 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 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 ).[1] 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 [6]; CPLR 214 [5]). 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 insofar as it seeks to restore this claim.[2] 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.

October 27, 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.
[2]
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, 22 NYCRR 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 judge.