New York State Court of Claims

New York State Court of Claims

GONZALEZ v. THE STATE OF NEW YORK, #2004-019-562, Claim No. 108220, Motion No. M-68313


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

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant's attorney:
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERALBY: Joseph F. Romani, Assistant Attorney General, of counsel
Third-party defendant's attorney:

Signature date:
July 12, 2004

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant, an inmate appearing pro se, moves for permission to file a late claim pursuant to Court of Claims Act (hereinafter "CCA") 10 (6) which the court is treating as a motion to restore his original claim, Claim No. 108220, to the court's calendar. The State of New York (hereinafter "State") opposes the motion.

This matter arose during claimant's incarceration at Southport Correctional Facility (hereinafter "Southport") on January 11, 2002. On January 2, 2002, claimant alleges that a facility physician removed a mole from his back and stitched up the wound. Claimant alleges that the stitches were not removed by a facility nurse as scheduled on January 11, 2002 resulting in an infection of his wound. Further, on January 12, 2002, claimant alleges that another facility nurse came to his cell and insisted that the stitches be removed through his cell's feeding slot. Claimant alleges that due to the use of this unorthodox manner the nurse failed to remove all the stitches and his infection worsened. Thereafter, claimant asserts that due to the resulting infection he was admitted to the hospital for 14 days from January 19, 2002 through February 1, 2002. The proposed claim alleges medical malpractice, medical indifference and negligence.

  1. Background
The court will review the procedural background of these matters in light of some confusion arising from claimant's filing of two claims and this motion all arising from the same allegations.

A. Claim No. 108220

On March 25, 2002, claimant allegedly served a Notice of Intention on defendant by certified mail, return receipt requested. On August 27, 2003, claimant mailed a claim to the Office of the Attorney General by certified mail, return receipt requested. Thereafter, on September 2, 2003, claimant filed the claim with the Clerk of the Court which was assigned Claim No. 108220. On September 16, 2003, an Order was issued denying claimant's request for a filing fee reduction and directing claimant to pay the statutory fee of $50.00 within 120 days or the claim would be closed without further judicial action. (Gonzalez v State of New York, Ct Cl, September 16, 2003, Sise, J., Claim No. 108220). On October 3, 2003, the State filed a Verified Answer. Claimant's deadline to pay the filing fee expired on January 16, 2004.

Claimant concedes that he received the court's order directing said payment, but explains that he was under the impression that the filing fee would automatically be deducted from his inmate account as had been his prior experience and as noted on the authorization form he signed. (Claimant's Reply,[1] ¶ 3, Exhibits A-D). Claimant also states that he attempted to send in payment as early as January 30, 2004, but had mistakenly requested the check be made directly to the Hon. Richard Sise. (Claimant's Reply, ¶ 5; Exhibit F). Nevertheless, claimant did not comply with the court's order and so this claim file, No. 108220, was closed on January 26, 2004.

B. Claim No. 109021

Next, claimant - still attempting to pay the filing fee on (the now dismissed) Claim No. 108220 - sent to the Clerk of the Court a copy of Claim No. 108220, the $50.00 statutory filing fee, and a set of motion papers he designated as a motion for permission to file a late claim.[2] As noted above, it is clear from claimant's current papers that he thought he was paying the filing fee in order to resurrect Claim No. 108220. On March 10, 2004, the Clerk of the Court received these papers and in view of the fact that Claim No. 108220 had since been dismissed, this "claim" was designated a new claim number, namely Claim No. 109021, and the filing fee was processed in connection therewith. On April 16, 2004, the State filed a Verified Answer containing jurisdictional defenses to this newest claim.

C. Motion No. M-68313

The Clerk of the Court also assigned claimant's motion papers (designated as a late filing motion) as Motion No. M-68313 and a return date of May 12, 2004 was scheduled. Next, chambers received a letter from claimant stating that he had no idea what Motion No. M-68313 was about. (Claimant's letter dated April 21, 2004). On May 13, 2004, chambers advised claimant in writing that Motion No. M-68313 would be adjourned without date pending further instruction from him on whether or not he intended to pursue said motion. (Court's letter dated May 13, 2004). Claimant responded to chambers indicating that he was still confused regarding the status of Claim No. 108220 and the meaning of the new Claim No. 109021 and Motion No. M-68313 indicating that he was not sure he needed the motion but (understandably) did not want to withdraw his motion unless he was certain that one of his claims was valid. (Claimant's letter dated May 14, 2004). In response, the court advised claimant that Motion No. M-68313 would be placed back on the court's calendar with a return date of June 30, 2004.

  1. Discussion
In this court's view, claimant's motion for permission to file a late claim should be treated as a motion for an order restoring his original claim, Claim No. 108220.[3] It is well-settled that 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. (22 NYCRR 206.15; CPLR 5015 [a] [1]; Mediavilla v Gurman, 272 AD2d 146; Wilcox v U-Haul Co., 256 AD2d 973). Further, there is a strong public policy that supports deciding matters on the merits. (Mediavilla, 272 AD2d at 148). Here, nothing in the motion papers suggests any prejudice that would result to defendant were the original claim restored. With respect to claimant's excuse for initially not paying the filing fee upon receipt of the court's order, claimant explains that he believed the fee would be automatically deducted from his account. Moreover, claimant filed this motion only two months after dismissal of the claim for non-payment.

Accordingly, upon a review of claimant's motions papers and upon due deliberation, and in view of the foregoing, IT IS ORDERED that claimant's motion, Motion No. M-68313, for an order restoring Claim No. 108220 is GRANTED; and Claim No. 108220 is restored to this court's calendar; and IT IS FURTHER ORDERED that Claim No. 109021 is dismissed and the $50.00 filing fee collected in connection therewith is to be applied to Claim No. 108220.

July 12, 2004
Binghamton, New York

Judge of the Court of Claims

The court has considered the following papers in connection with this motion:
  1. ORDER, Sise, J., Claim No. 108220, filed September 16, 2003.
  2. Notice of Motion No. M-68313, dated March 5, 2004, and filed March 10, 2004.
  3. Affidavit of Luis Gonzalez, in support of motion, unsworn to, and dated March 5, 2004.
  4. Proposed Verified Claim, sworn to March 5, 2004.
  5. Affirmation of Joseph F. Romani, AAG, in opposition to motion, dated April 5, 2004, and filed April 7, 2004, with attached exhibits.
  6. Copy of letter from Luis Gonzalez to David B. Klingaman, Chief Clerk, dated April 21, 2004.
  7. Letter from Court to Luis Gonzalez, dated May 13, 2004.
  8. Letter from Luis Gonzalez to Court, dated May 14, 2004.
  9. Letter from Court to Luis Gonzalez and Joseph F. Romani, AAG, dated June 2, 2004.
  10. "Reply to State's Affirmation in Opposition", of Luis Gonzalez, unsigned, undated, unsworn to, with attached exhibits.

[1]Claimant's Reply is unsigned.
[2]Claimant's motion papers were designated as a separate and distinct motion and assigned Motion No. M-68313.
[3]Papers by pro se litigants should be construed liberally. (Rosen v Raum., 164 AD2d 809).