New York State Court of Claims

New York State Court of Claims

MASTROIANNI v.THE STATE OF NEW YORK, #2000-001-065, Claim No. 101566, Motion No. M-62304


Synopsis


Claimant's motion for an order restoring the claim is granted upon submission of the proper statutory filing fee.

Case Information

UID:
2000-001-065
Claimant(s):
ANTHONY MASTROIANNI
Claimant short name:
MASTROIANNI
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
101566
Motion number(s):
M-62304
Cross-motion number(s):

Judge:
Susan Phillips Read
Claimant's attorney:
Schwartzapfel, Novick, Truhowsky & Marcus, P.C.By: Robert B. Marcus, Esq., Of Counsel
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney GeneralBy: John M. Shields, Esq., Assistant Attorney General, Of Counsel
Third-party defendant's attorney:

Signature date:
October 30, 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 September 1 and filed September 5, 2000; Affirmation in Support of Robert B. Marcus, Esq., dated September 1 and filed September 5, 2000, with annexed Exhibits A-J; Affirmation in Opposition of John M. Shields, Esq., AAG, dated September 11 and filed September 13, 2000, with annexed Exhibit A; Reply Affirmation of Robert. B. Marcus, Esq., dated September 22 and filed September 25, 2000, with annexed Exhibit A.

Claimant Anthony Mastroianni ("claimant") filed this claim for damages on December 10, 1999, alleging that defendant State of New York ("defendant" or "the State") was liable for injuries he sustained when he tripped and fell in a crosswalk for whose maintenance the State is allegedly responsible in the Village of Huntington, Suffolk County, due to its defective condition (Affirmation in Support of Robert B. Marcus, Esq., dated September 1 and filed September 5, 2000, with annexed Exhibits A-J ["Marcus Aff."], ¶¶ 3, 7; claim, dated December 2 and filed December 10, 1999 ["claim"], ¶¶ 18-20).[1] As a result of the accident, claimant allegedly suffered numerous injuries including, among other things, brain damage requiring multiple surgeries and causing permanent cognitive and emotional damage (Marcus Aff., ¶ 4; claim, ¶ 21).

The Court directed claimant to pay the fee within 120 days of an order filed and served by mail on December 23, 1999, and closed the file on August 23, 2000 because he did not comply with this order. Claimant now moves to restore the claim to the calender, blaming the failure to pay the fee on counsel's ignorance of the new fee requirement (see, Court of Claims Act § 11-a) (Marcus Aff., ¶¶ 11-12).[2] Counsel for claimant avers that he only became aware of the filing fee requirement after he was notified that the file had been closed, and surmises that the order requiring payment must have been misfiled as he has found no record of it in his files (Marcus Aff., ¶ 12). Defendant opposes claimant's motion to restore, arguing that the Court lacks jurisdiction over the claim since it has been dismissed (Affirmation in Opposition of John M. Shields, Esq., AAG, dated September 11 and filed September 13, 2000, with annexed Exhibit A ["Shields Aff."], ¶¶ 3-5) and that claimant has not proffered a legitimate excuse for the failure to pay the Court's filing fee (Shields Aff., ¶¶ 7-9).

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 that defendant will be prejudiced by the restoration of claimant's claim. In fact, the papers indicate that claimant served a notice of intention upon the State on November 23, 1998 (Marcus Aff., ¶ 5, Exh. C), and that discovery proceeded promptly after the claim was filed (Marcus Aff., ¶¶ 7-8, Exhs. D-E). The Court also notes that claimant is well within the allowable time period for making a motion to file a late claim (see, Court of Claims Act § 10 [6]; CPLR 214 [5]). On the presented facts, as buttressed by the professional opinion of a consulting engineer (Reply Affirmation of Robert. B. Marcus, Esq., dated September 22 and filed September 25, 2000, Exh. A), the claim appears to have merit within the meaning of Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1 (see also, Rosenhack v State of New York, 112 Misc 2d 967; Plate v State of New York, 92 Misc 2d 1033). Further, the Court recognizes the strong public policy favoring decision on the 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 the claim. Claim No. 101566 is hereby restored to the trial calendar of the Honorable Alan C. Marin upon claimant's submission of the proper statutory filing fee within 30 days of receipt of a file-stamped copy of this Decision and Order.

October 30, 2000
Albany, New York

HON. SUSAN PHILLIPS READ
Judge of the Court of Claims




[1]
Paragraph numbers have been added to the Affirmation and Reply Affirmation of Robert B. Marcus for ease of reference.
[2]
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, three days before this claim was filed.