New York State Court of Claims

New York State Court of Claims

WILSON v. THE STATE OF NEW YORK , #2005-028-521, Claim No. 109271, Motion No. M-69361


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

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:
Third-party defendant's attorney:

Signature date:
March 7, 2005

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read on Claimant's application to restore Claim No. 109271 to the Court's calendar:

Notice of Motion and Supporting Affidavit of George Wilson (Wilson Affidavit) filed November 17, 2004 with annexed Exhibits A-K;

Opposition Papers: None

Filed Papers: Claim filed April 28, 2004; Order filed May 13, 2004.

Following the Court of Appeals' decision in Lepkowski v State of New York 1 NY3d 201 Defendant began to reject as a nullity claims which Defendant believed were either unverified or defectively verified. Claimants have responded to the rejection in many different ways.

The current application stems from a Lepkowski rejection compounded by Claimant's error. On April 22, 2004 Claimant filed his Claim with the Clerk of the Court of Claims, which was assigned Claim No. 109231, 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 May 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. While Claimant's fee reduction application was sub judice, Defendant rejected Claim No. 109231.

In response, thereto, Claimant filed a Claim on April 28, 2004 which was virtually identical to Claim No. 109231. The second claim was likewise accompanied by a fee reduction application and, in accordance with Court procedure, was assigned Claim No. 109271. The fee application was denied by Order filed May 13, 2004, again affording Claimant 120 days in which to pay the filing fee. On June 9, 2004 Defendant answered Claim No. 109271. At that juncture, Claimant had two filed Claims both subject to 120 days.

Thereafter, in late June 2004 Claimant submitted a filing fee of $50.00 which was applied, as indicated in both his cover letter and on the disbursement form, to Claim No. 109231. On September 16, 2004 the Clerk of the Court closed Claim No. 109271 pursuant to the Order filed May 13, 2004 as the filing fee was unpaid at the expiration of the 120 days.

The instant application ensued with Claimant maintaining that Claim No. 109231 is not his and therefore the Court applied his filing fee to the wrong claim (Wilson Affidavit ¶ 5).

Claimant's averment that Claim No.109231 is not his Claim is simply wrong and the Court applied his filing fee as directed by him[1]. It is clear to the Court on this record that Claimant, unfamiliar with the interplay of a rejected Claim and the Court's procedure, believed the first filed Claim was, in the words of the statute, a "nullity" (CPLR 3022) and that his curative steps, including the submission of a filing fee, would remedy the situation with a new and single Claim. It did not. Against this procedural landscape created in Lepkowski's aftermath, the question before the Court today is whether Claim No. 109271 can be restored and, if so, on what conditions.

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." 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 May 13, 2004 to 60 days from the filed date of this decision and order. Inasmuch as there were two filed Claims, the Court can not direct application of the fee paid for Claim No. 109231 to the instant Claim. Claimant must bear the burden of that mistake.

Upon payment of the filing fee consistent with this Decision and Order, the Clerk of the Court is directed to restore this Claim No. 109271 to the calendar.

Accordingly, Claimant's motion is conditionally granted consistent with the foregoing.

March 7, 2005
Albany, New York

Judge of the Court of Claims

[1] Since Claim No. 109231 remains open and unanswered, the Court issued an Order to Show Cause to the parties directing that they indicate whether that Claim should be dismissed. For the reasons that follow, the answer to that question awaits Claimant's response to this decision.