New York State Court of Claims

New York State Court of Claims

GREGORY v. THE STATE OF NEW YORK, #2000-001-068, Claim No. 102536, Motion No. M-62365


Synopsis


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

Case Information

UID:
2000-001-068
Claimant(s):
ROBERT GREGORY
Claimant short name:
GREGORY
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
102536
Motion number(s):
M-62365
Cross-motion number(s):

Judge:
Susan Phillips Read
Claimant's attorney:
Nishman and SavitskyBy: Robert W. Nishman, Esq., Of Counsel
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney GeneralBy: Richard Lombardo, 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: Notice of Motion, dated September 11 and filed September 13, 2000; Affirmation of Robert W. Nishman, Esq., dated September 11 and filed September 13, 2000, with annexed Exhibits A-F; and letter response of Richard Lombardo, Esq., AAG, dated September 18 and received September 20, 2000.

Claimant Robert Gregory ("claimant"), an inmate who alleges that he was injured at Sing Sing Correctional Facility ("Sing Sing") when he slipped and fell in a puddle of water that defendant State of New York ("defendant" or "the State") had negligently allowed to accumulate (claim, dated May 25 and filed May 30, 2000), filed this claim for damages on May 30, 2000 without paying the filing fee required by Court of Claims Act § 11-a (1) or making an application for a fee reduction (see, CPLR 1101 [f]).[1] The Court directed claimant to pay the fee or file an application within 30 days of an order filed and served by mail on June 15, 2000, and closed the file on July 24, 2000 when he did not comply with this order.

Claimant now moves to restore the claim to the calender; he blames his failure to pay or file a timely application on the tardiness of his prior attorney, who withdrew from representing him for personal reasons (Affirmation of Robert W. Nishman, Esq., dated September 11 and filed September 13, 2000, with annexed Exhibits A-F ["Nishman Aff."], ¶¶ 3-5, 8, Exh. A).[2] Claimant's current counsel, retained on August 22, 2000 (Nishman Aff., ¶ 2), explains that claimant's prior attorney did not notify claimant of his intention to withdraw or forward the application for a filing fee reduction until after the time to do so had already expired (Nishman Aff., ¶¶ 3-4, Exhs. A-B, E). The State does not object to this claim's restoration to the trial calender (letter response of Richard Lombardo, Esq., AAG, dated September 18 and received September 20, 2000).

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). In this instance, 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), and notes that defendant does not object to restoration.

Accordingly, upon review of claimant's motion papers and upon due deliberation, the Court grants claimant's motion to restore this claim. Claim No. 102536 is hereby restored to the trial calendar of the Honorable Terry Jane Ruderman upon claimant's submission of the proper statutory filing fee or an application for a reduction of the 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]
Paragraph numbers have been added to the Affirmation of Robert W. Nishman for ease of reference.