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