New York State Court of Claims

New York State Court of Claims

PAUL v. THE STATE OF NEW YORK, #2001-001-079, Claim No. 102350, Motion No. M-63811


Synopsis


Claimant's motion to restore this claim, closed for failure to pay the filing fee, is dismissed.

Case Information

UID:
2001-001-079
Claimant(s):
HENRY PAUL
Claimant short name:
PAUL
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
102350
Motion number(s):
M-63811
Cross-motion number(s):

Judge:
SUSAN PHILLIPS READ
Claimant's attorney:
Adam Thompson, Esq.
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney GeneralBy: J. Gardner Ryan, Esq., Assistant Attorney General, Of Counsel
Third-party defendant's attorney:

Signature date:
November 8, 2001
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers were read and considered on claimant's motion to restore the claim: Notice of Motion, dated July 11 and filed July 20, 2001; Affirmation in Support of Adam Thompson, Esq., affirmed July 12 and filed July 20, 2001, with annexed Exhibits A-B; Affirmation in Opposition of J. Gardner Ryan, Esq., AAG, dated August 7 and filed August 9, 2001, with annexed Exhibits A-G; Affirmation in Reply of Adam M. Thompson, Esq., dated October 21 and filed October 24, 2001, with annexed Exhibits 1-8; claim, dated April 17 and filed April 24, 2000; and Henry Paul v State of New York, Ct Cl, unreported order filed May 10, 2000, Read, P.J.

In his claim filed on April 24, 2000, claimant Henry Paul ("claimant") alleges that he suffered injuries due to the negligence of defendant State of New York ("defendant" or "the State") when an untrained inmate operating a forklift knocked over a cabinet causing it to strike and fracture his left foot (claim, dated April 17 and filed April 24, 2000; Affirmation in Support of Adam Thompson, Esq., affirmed July 12 and filed July 20, 2001, with annexed Exhibits A-B [Thompson Aff."], ¶ 2; Affirmation in Reply of Adam M. Thompson, Esq., dated October 21 and filed October 24, 2001, with annexed Exhibits 1-8 ["Reply Aff."], Exh. 8 [Affidavit in Support of Henry Paul]). Because the claim was filed without the requisite filing fee (Court of Claims Act § 11-a),[1] the Court issued an order directing payment within 120 days of the order's filing date (Henry Paul v State of New York, Ct Cl, unreported order filed May 10, 2000, Read, P. J.). This order was attached to the claim acknowledgment letter sent to claimant's counsel on May 10, 2000.

Claimant did not comply with the Court's order, and so the claim file was closed on October 11, 2000. This motion to restore the claim followed on July 20, 2001, some nine months later.

Like the vacatur of a default judgment, the restoration of a claim lies within the discretion of a trial court and requires the moving party to make a threshold showing that a reasonable excuse exists for the default (see generally, Mediavilla v Gurman, 272 AD2d 146; Wilcox v U-Haul Co., 256 AD2d 973; see also, CPLR 5015 [a] [1]; 22 NYCRR 206.15). Here, counsel for claimant ascribes nonpayment to his ignorance: "It was unknown to [him] as counsel that a filing fee was due in this case and that it was required since this case was originally filed by the claimant ‘pro se' in 1998 and thought to have been waived" (Reply Aff., ¶ 7; see also, Thompson Aff., ¶ 2).[2]

This excuse is unavailing: the claim was filed by counsel on behalf of claimant--not pro se--on April 24, 2000, roughly five months after the effective date of the filing fee provision (see, n 1, supra). More significantly, counsel does not explain why he ignored the Court's order directing remittal of the filing fee within 120 days of the order's filing, and warning that failure to do so would result in closure of the claim file.[3]

Counsel's explanation for the substantial delay in making this motion to restore is similarly troubling and unpersuasive. Counsel states that he did not make the motion earlier because he thought that his November 8, 2000 letter, in which he informed the Court that the State consented to restoration and by which he forwarded a check in the amount of fifty dollars, "was what the court wanted and the case would be restored. I was waiting for the Clerk or Court to send something [and] never received such a letter" (emphasis supplied) (Reply Aff., ¶ 18).[4] Yet nine paragraphs earlier, counsel refers to, and submits as an exhibit, a letter from the Chief Clerk, dated November 29, 2000, which clearly advised him that restoration had to be sought by formal motion and therefore his payment of the filing fee was premature; and enclosed a Request for Refund form in order for him to receive a refund of the prematurely paid filing fee directly from the Office of the State Comptroller (see, Reply Aff., ¶ 9, Exh. 7; Ryan Aff., Exh. E).

In short, counsel has failed to proffer a reasonable or credible excuse for the failure to submit the mandatory filing fee upon the claim's filing in April 2000, or for the failure to obey this Court's order of May 10, 2000, which gave him 120 days in which to cure this error, or, finally, for the delay in making this motion. In light of the absence of any credible or reasonable excuse for any of these lapses, the Court denies claimant's motion to restore the claim (see, Montalvo v Nel Taxi Corp., 114 AD2d 494, 495, appeal dismissed, lv denied 68 NY2d 643 [where no justifiable excuse is proffered leaving the default unexplained, moving party is not entitled to relief notwithstanding meritorious nature of claim or defense]; see also Matter of Aetna Life & Cas. Co. v Walker, 255 AD2d 381, supra [lengthy delay in making motion and failure of moving party to establish a reasonable excuse for its default justified denial of CPLR 5015 motion; unsubstantiated excuse by attorney that his office was unaware of court hearing date was insufficient to rebut proof that notice was properly mailed and presumption of receipt]).


November 8, 2001
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, while acting pro se, served a notice of intention upon the Attorney-General in June 1998 (Affirmation in Opposition of J. Gardner Ryan, Esq., AAG, dated August 7 and filed August 9, 2001, with annexed Exhibits A-G ["Ryan Aff."], ¶ 2, Exh. A). He did not file the claim pro se, as discussed in the text.
[3]Claimant was represented by the same attorney at the time the claim was filed and the order was served by first-class mail upon claimant's attorney at the address listed on the claim, which raises the presumption--unchallenged on this motion--that the order was properly received (see, Matter of Holland v New York City, 271 AD2d 609, 610; Matter of Aetna Life & Cas. Co. v Walker, 255 AD2d 381).
[4]Counsel avers that he thought this procedure for restoration was fine because, after reviewing it by telephone with an unnamed Court employee, "I was told since it [was] stipulated by both sides to late file the fee, that I would not need to file a formal motion and a letter with the stipulations and fee would be fine. I then drafted the letter and the stipulation and sent both with the check to the Court" (Reply Aff., ¶ 8). If such advice was given--and the Court found no evidence that it was--it would have contradicted the Court's procedure for handling requests for restoration, as counsel for claimant had every reason to know within a month of his November 8, 2000 letter to the Court, as discussed in the text.