2) Affirmation in Opposition of Howard A. Balsam (Balsam Affirmation)
May 6, 2003.
Filed Papers: Claim, filed September 27, 1999; Amended Claim filed January 21,
Decision and Order; Smith v State of New York, Ct Cl, Fitzpatrick, J.,
December 17, 2002 (unpublished).
Defendant has timely moved by pre-answer motion to dismiss the instant Claim
premised upon Claimant's failure to timely serve an Amended Claim, as directed
by the Hon. Diane L. Fitzpatrick, in a decision and order which granted
Claimant's application to treat his timely served Notice of Intention as a Claim
pursuant to Court of Claims Act § 10(8) (see Decision and Order;
Smith v State of New York, Ct Cl, Fitzpatrick, J., December 17, 2002
Defendant asserts that the time constraints set forth in Judge Fitzpatrick's
decision and order must be construed strictly, akin to the requirements set
forth in Court of Claims Act §§ 10 and 11 (Marmelstein
Affirmation, ¶¶ 7 and 8). Claimant opposes the motion,
acknowledging that the Amended Claim was untimely served (Balsam Affirmation
¶ 4) and begs the Court, without benefit of a cross-motion, to grant
"retroactive permission for an extension of time" (id. ¶ 5).
Claimant's counsel offers as an explanation for the delay that he could not
locate Claimant as Claimant failed to inform counsel of a new telephone number
(id. ¶ 8).
Mindful that the Court has already "breathed life into the Claim" (see
Marmelstein Affirmation, ¶ 8 ), the Court can not overlook the fact
that a Claim initiating this action, albeit originally a Notice of Intention,
has been filed. The issue before the Court is compliance with the time
periods set forth in the prior Order and not compliance with the Court of Claims
Act itself; the Court having determined that Claimant was entitled to relief
pursuant to the Act. As such, the Court does not accept Defendant's argument
that strict application of the Court of Claims Act is required in a situation,
where as here, the Court has, inter alia, directed the service of an
Amended Claim. Clearly, there were better courses of action available to
Claimant than leaving the matter to chance, such as an application pursuant to
Notably, CPLR 2004 authorizes the Court to extend the time fixed by an order
for doing any act "upon such terms as may be just and upon good cause shown."
The Court of Appeals has held that good cause under CPLR 2004 includes law
(see Tewari v
, 75 NY2d 1, 12). This Court, favoring resolution of claims on
the merits (Frank v Martuge
, 285 AD2d 938), faced with a short period of
(see Sabatello v
, 200 AD2d 939) and no prejudice to the Defendant, sua
, extends Claimant's time to once again serve and file the Amended
Claim pursuant to CPLR 2004.
The Court, in exercising its discretion sua sponte, must also address
the failure of the Claimant to comply with an Order of the Court and the
resulting motion made by the Attorney General on behalf of his client. In
granting this extension, the Court will do so "upon such terms as may be just"
(CPLR 2004). Such terms commonly include a monetary condition (see LaPlant v
State of New York, Ct Cl, Bell, J., Claim No. None, Motion No. M-64682,
UID#2002-007-153 [March 8, 2002]) and the Court finds that such a condition is
warranted, where, as here, the Attorney General acted to protect his client's
rights when Claimant failed to comply with the existing Order.
Accordingly, and consistent with the foregoing it is hereby
ORDERED, that Defendant's motion is conditionally denied; and it is
ORDERED, that Claimant's attorney shall deposit with the Clerk of the Court a
check in the amount of $250.00 payable to the New York State Department of Law
no later than October 4, 2003, said check to be transmitted to the Attorney
General by the Clerk of the Court, and it is further
ORDERED, that upon the deposit of said check with the Clerk of the Court,
Claimant shall serve and file the Amended Claim previously filed with the Clerk
of the Court, no later than October 15, 2003; and it is further
ORDERED, that upon the failure to deposit the said check as set forth above,
the Defendant's motion shall be granted and the Claim dismissed.