The following papers were read on Claimant's application to restore Claim No.
109449 to the Court's calendar:
1) Notice of Motion and Supporting Affidavit of Patrick David (David
Affidavit) filed November 1, 2004 with annexed Exhibits A-C ;
Opposition Papers: None
advising that the
Defendant took no position with regard to the current application.
Filed Papers: Claim filed June 7, 2004; Order filed June 10, 2004.
Claimant makes the current application to "renew" following dismissal of his
Claim for failure to pay the Court's $50.00 filing. On June 7, 2004 Claimant
filed his Claim with the Clerk of the Court of Claims, which was assigned Claim
No. 109449, together with an application pursuant to CPLR § 1101(f) for a
reduction of the Court's $50 filing fee (see Court of Claims Act §
11-a). By Order filed June 10, 2004, the Court denied Claimant's fee reduction
and directed that the filing fee be paid within 120 days or the Claim would be
closed without further judicial action. On October 13, 2004 the Clerk of the
Court closed Claim No. 109449 pursuant to the Order filed June 10, 2004 as the
filing fee was unpaid. Claimant, at all times relevant an inmate, asserts
that he took the necessary steps to have the filing fee transmitted to the
Clerk's office and that the funds were not received through no fault of his
Court of Claims Act § 19 (3) provides that "[c]laims may be dismissed for
failure to appear or prosecute or be restored to the calender for good cause
shown, in the discretion of the court". Courts have held that, in some
circumstances, they have an inherent power to vacate a judgment "in the interest
of justice" even after the one-year period has expired (see e.g. Molesky v
Molesky, 255 AD2d 821). 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 documentary evidence submitted by Claimant establishes that he did in fact
take the steps necessary to cause the filing fee to be sent to the Clerk.
Unfortunately, and through no fault of his own, that transmittal never arrived
in the Clerk's office although a check was issued (but see Rodriguez v State
of New York, 307 AD2d 657 [defect in mailing by prison officials]). Here,
Claimant has timely made his application and as such, the Court exercises its
discretion to consider the application. This Court, favoring resolution of
claims on the merits (Frank v Martuge, 285 AD2d 938), faced with a short
period of default (see Sabatello v Frescatore, 200 AD2d 939) and
no prejudice to the Defendant (see e.g. Saha v Record, 307 AD2d 550),
finds Claimant has established good cause and extends Claimant's time to pay the
filing fee set forth in the Court's Order of June 10, 2004 to 60 days from the
filed date of this decision and order.
Upon payment of the filing fee consistent with this decision, the Clerk of the
Court is directed to restore this Claim No. 109449 to the calendar.
Accordingly, Claimant's motion is conditionally granted consistent with the