New York State Court of Claims

New York State Court of Claims

PEREZ v. THE STATE OF NEW YORK, #2001-014-524, , Motion No. M-63060


Synopsis


Claimant's motion for an extension of time to file a late claim is granted.

Case Information

UID:
2001-014-524
Claimant(s):
JEANETTE PEREZ
Claimant short name:
PEREZ
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):

Motion number(s):
M-63060
Cross-motion number(s):

Judge:
S. Michael Nadel
Claimant's attorney:
John D. B. Lewis
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Toni E. Logue, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
March 30, 2001
City:
New York
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers were read on the claimant's motion seeking an extension of time within which to pay the fee required by Court of Claims Act §11-a, and for permission to serve and file an amended claim: Notice of Motion, Affirmation and exhibits annexed, Affidavit of claimant; Affirmation in Opposition and exhibits annexed; Reply Affirmation and exhibits annexed.


By Order filed October 23, 2000 (Motion No. M-61595, New York State Court of Claims #2000-014-528[1]), the Court granted the claimant's application, in which she appeared pro se, for permission to file a late claim. The Court's Order provided that
claimant shall file the proposed claim in accordance with the provisions of Court of Claims Act §§ 11 and 11-a and Rule 206.5 of the Uniform Rules for the Court of Claims, and serve it, in accordance with the provisions of Court of Claims Act §11, either personally or by certified mail return receipt requested, upon the Attorney General, within 45 days of the date of the filing of this Order. The claim shall be in the form it appears annexed to the claimant's submission, except that it shall include a statement of the amount of damages claimed, as required by Court of Claims Act §11(b).
The claimant, who is now represented by counsel, has moved for an extension of time within which to pay the fee required by Court of Claims Act §11-a, and for permission to serve and file an amended claim which has been drafted by counsel.

Upon review of the record herein, it appears that the claimant submitted a claim to the Court for filing which, upon its receipt on January 2, 2001, was not filed by the Chief Clerk, who returned it to the claimant because it was not accompanied by the fee required by Court of Claims Act §11-a, or an application for reduction of the fee pursuant to CPLR 1101(f).[2] The Chief Clerk also noted that the claimant's time to serve and file a claim in compliance with the Court's Order had expired. While it appears from the claimant's submission on this motion that she, and her counsel, contend that the claim was submitted earlier, it is not disputed by the claimant that she did not comply with that portion of the Court's Order which specifically directed that the claim was to be filed, inter alia, in accordance with the provisions of Court of Claims Act §11-a, which require either the payment of a fee of $50, or an application pursuant to CPLR 1101. She did neither, as a result of which the claim was not filed by the Chief Clerk.

In its opposition to the motion, the defendant states that the claim was properly served on December 1, 2000, but contends that service on that date was untimely because it was more than 45 days from the date of the Court's Order, October 13, 2000. But service on December 1, 2000 was within 45 days of the date of the filing of the Court's Order, which was October 23, 2000, and thus in compliance with that Order. The defendant's contention that service of the claim was untimely is without merit.

The specific relief sought by the claimant is an order "that the time to pay the $50.00 filing fee be extended, that claimant be permitted to substitute the Amended Claim for the pro se claim, [and] that defendant answer the amended claim."

On the circumstances presented, no claim has been filed, which would not be obviated by an extension of time to pay the filing fee. Thus, the claimant's application is more properly treated as one seeking an extension of time to file the claim; and seeking permission to serve and file a claim which is not identical to the proposed claim submitted with the late claim application.[3]

In Griffin v John Jay College, 266 AD2d 16, the Court held that it was "an improvident exercise of discretion to deny claimant's second application for an extension of time to complete compliance with an earlier order by filing the late claim" where the claimant had "partially complied with the court's initial order by timely serving the Attorney General." In that case, as in the claim herein, "the Attorney General's office did not assert that it would be prejudiced if an additional extension were granted." Id. Nor has the defendant suggested any prejudice which would result from the service and filing of the Amended Claim, which, while more formally drafted than the original proposed claim, does not differ from it in any material way. See, CPLR 3025(b).

In accordance with the foregoing the claimant's motion is granted to the extent that it is hereby

ORDERED, that claimant shall file the proposed Amended Claim in the form in which it is annexed as an exhibit to the Affirmation in support of the motion, except that it shall be denominated a "Claim," in accordance with the provisions of Court of Claims Act §§ 11 and 11-a and Rule 206.5 of the Uniform Rules for the Court of Claims, and serve it, in accordance with the provisions of Court of Claims Act §11, either personally or by certified mail return receipt requested, upon the Attorney General, within 45 days of the date of the filing of this Order.


March 30, 2001
New York, New York

HON. S. MICHAEL NADEL
Judge of the Court of Claims




[1]Decisions of the New York State Court of Claims can be found on its website at http://court.acmenet.net/MacLaw.
[2]The claim was accompanied by a check for $25, intended as payment of the fee. From the claimant's submission herein, it appears that the claimant included payment in that amount based on a reference in the Court's prior Order to the fact that by Order of the Presiding Judge, filed March 10, 2000, the filing fee required by Court of Claims Act §11-a(1) was set at $25, in connection with Claim No. 102000, an apparently related claim filed previously by the claimant.
[3]This motion was filed within the period of the relevant statute of limitation. See, Court of Claims Act § 10(6).