New York State Court of Claims

New York State Court of Claims

LaPLANT v. THE STATE OF NEW YORK, #2002-007-153, Claim No. NONE, Motion No. M-64682


Synopsis


Claimants were previously granted permission to late file a claim but failed to do so within the time frame set forth by the court. An extension is conditionally granted upon payment of a monetary sanction

Case Information

UID:
2002-007-153
Claimant(s):
REGINALD J. LaPLANT and JUDY B. LaPLANT
Claimant short name:
LaPLANT
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
NONE
Motion number(s):
M-64682
Cross-motion number(s):

Judge:
John L. Bell
Claimant's attorney:
CADE & SAUNDERS, P.C. (LARRY J. ROSEN, ESQ., of Counsel)
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERAL (MICHAEL W. FRIEDMAN, ESQ., ASSISTANT ATTORNEY GENERAL, of Counsel)
Third-party defendant's attorney:

Signature date:
March 8, 2002
City:
Plattsburgh
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)

.
Decision

Claimants have made an application for permission to late file a claim pursuant to Court of Claims Act § 10(6). The return date of the motion was March 6, 2002. The following papers were read and considered by the court:

Notice of Motion, Affirmation of Larry

J. Rosen, Esq., Affidavit of Reginald J.
LaPlant, Annexed Exhibits 1, 2, 3, 4


Affirmation in Opposition of Michael
W. Friedman, Esq. 5
Claimant Reginald J. LaPlant contends that he was injured on September 25, 2000, when he was involved in a motor vehicle accident with a State-owned vehicle on State Route 3 in the Town of St. Armand, Essex County. Claimants failed to commence a claim in a timely fashion and thus made a motion, returnable March 21, 2001, for permission to late file a claim pursuant to Court of Claims Act § 10(6). In a decision and order, filed March 28, 2001, the court denied the motion, without prejudice, primarily because claimants failed to establish a meritorious claim. Thereafter, by motion returnable August 15, 2001, claimants moved again for permission to late file a claim. The motion was granted in a decision and order, filed September 6, 2001, and claimants were directed to serve and file their claim within 35 days of the file-stamped date of the court's decision and order. Claimants, however, failed to file and serve their claim within 35 days as directed by the court. Claimants have thus moved yet again for permission to late file a claim.

The court is not convinced that a motion pursuant to Court of Claims Act § 10(6) is appropriate. To accept another section 10(6) application would seriously undermine the court's direction that the claim be filed within 35 days. Since the court has already found that permission to late file should be granted, the court could not now deny the motion on the merits unless the Statute of Limitations had expired. If claimants could merely apply to the court again under section 10(6), they could, in essence, keep extending the court's previously imposed 35-day filing requirement until the expiration of the CPLR article 2 Statute of Limitations.

The application is better treated as one pursuant to CPLR 2004, which provides:

"Except where otherwise expressly prescribed by law, the court may extend the time fixed by any statute, rule or order for doing any act, upon such terms as may be just and upon good cause shown, whether the application for extension is made before or after the expiration of the time fixed."


CPLR 2004 vests the court with discretion to extend various deadlines (see, Tewari v Tsoutsouras, 75 NY2d 1). Relevant factors when considering whether to extend a deadline include, inter alia, the length of the delay, prejudice occasioned by the delay and the reason for the delay (id.; Alexander, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR 2004, at 693).[1]

Here, the length of the delay is relatively short and there has been no showing of prejudice to defendant. Claimants' counsel candidly admits that the failure to file the claim in a timely fashion following the court's decision and order of September 6, 2001 was the result of law office failure. Counsel states that the decision and order was misplaced in his office and thus the deadline was missed through no fault of claimants. The law favors resolution of cases on the merits and law office failure is an excuse that can be considered within the framework of a CPLR 2004 extension. (ByComp, Inc. v New York Racing Assn., 152 AD2d 848; Knapek v MV Southwest Cape, 110 AD2d 928).

The failure to comply with an order, however, should not generally be permitted to occur with impunity (see, Kihl v Pfeffer, 94 NY2d 118). It has become increasingly common for courts, guided by the statutory language to grant an extension "upon such terms as may be just," to impose a monetary condition upon excusing a delay caused by law office failure (see generally, Alexander, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR 2004, at 693). The court is convinced that such a condition is appropriate in the current circumstances and, since the Attorney General's office has expended resources to respond to the current motion, the payment should be made to the Attorney General.

It is

ORDERED that claimants' motion is granted to the extent that within 15 days of the filed-stamped date of this decision and order claimants' attorney shall deposit with the Chief Clerk of the Court of Claims a check for the sum of five hundred dollars ($500.00) payable to the New York State Department of Law for transmittal to said entity; and it is further

ORDERED that upon the deposit of said check with the Chief Clerk the deadline for serving and filing the claim, as set forth in the court's decision and order of September 6, 2001, shall be extended to 30 days from the filed-stamped date of this decision and order.


March 8, 2002
Plattsburgh, New York

HON. JOHN L. BELL
Judge of the Court of Claims




[1] A showing of the merits of the claim is sometimes necessary for a CPLR 2004 extension. The court previously determined within the context of the late file application that the claim had merit.