New York State Court of Claims

New York State Court of Claims

DAVID v. THE STATE OF NEW YORK, #2005-028-513, Claim No. 109449, Motion No. M-69351


Synopsis


Claimant's application to restore the Claim is granted provided Claimant pays the filing fee within 60 days of the filed date of this Order.

Case Information

UID:
2005-028-513
Claimant(s):
PATRICK DAVID
Claimant short name:
DAVID
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
109449
Motion number(s):
M-69351
Cross-motion number(s):

Judge:
RICHARD E. SISE
Claimant's attorney:
PATRICK DAVID, pro se
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERAL
BY: Heather R. Rubinstein, Esq.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
February 18, 2005
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

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[1]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 own.

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 foregoing.


February 18, 2005
Albany, New York

HON. RICHARD E. SISE
Judge of the Court of Claims




[1] The Court received a letter from Assistant Attorney General Heather R. Rubinstein