New York State Court of Claims

New York State Court of Claims

ELDERKIN v. THE STATE OF NEW YORK, #2005-028-537, Claim No. 109714, Motion No. M-69870


Motion granted and payment of $250.00 to the Defendant directed.

Case Information

MERLE J. ELDERKIN The caption of this action is amended sua sponte to reflect the State of New York as the only properly named defendant.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The caption of this action is amended sua sponte to reflect the State of New York as the only properly named defendant.
Third-party claimant(s):

Third-party defendant(s):

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

Claimant's attorney:
Defendant's attorney:
BY: William D. Lonergan, Esq.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
June 22, 2005

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read on Claimant's application for an Order extending the time in which to pay his filing fee:

1) Notice of Motion and Supporting Affidavit of Merle J. Elderkin (Elderkin Affidavit) and Supporting Affirmation of James E. Westman, Esq. (Westman Affirmation) filed February 24, 2005 with annexed Exhibit;

2) Affidavit in Opposition of Assistant Attorney General William D. Lonergan (Lonergan Affidavit) filed April 5, 2005 with annexed Exhibits A-D.

Filed Papers: Claim, filed August 11, 2004; Order Elderkin v New York State Police Trooper Karl Kobelli, Ct Cl, Sise, J., August 18, 2004.

By Order filed August 18, 2004, the Court denied Claimant's application pursuant to CPLR §1101(d) for a waiver of this Court's $50 filing fee (Court of Claims Act § 11-a) and afforded Claimant 120 days in which to pay the fee or the Claim would be closed without further judicial action. Upon Claimant's failure to comply with the Order, the Clerk of the Court closed the Claim file on December 29, 2004. The instant application followed, and Defendant opposes same.

The issue before the Court is whether to exercise its discretion and excuse Claimant's failure to comply with the time periods set forth in the prior Order. Although not denominated as such, the Court will treat Claimant's request for a "nunc pro tunc" order as an application pursuant to CPLR §2004.

A review of the submissions and the Court's file discloses, as pointed out correctly by the Defendant in opposition, the picture painted in Claimant's application as to the chain of events, in the kindest terms, simply does not hold water. The Court's records reflect that the Claim and the CPLR §1101(d) application were submitted simultaneously to the Clerk of the Court by Attorney Westman on behalf of his client, Mr. Elderkin. The Court's 120 day order was transmitted to Attorney Westman as was the notification that the Claim was closed for nonpayment of the filing fee. Nowhere in the Court's file is there any indication whatsoever of the appearance on behalf of Claimant of any attorney, other than Attorney Westman, as stated by both Attorney Westman and Mr. Elderkin nor do either individual support their statements with documentary evidence. Given this record, the Court is particularly troubled by the averments made in support of this application and more so by the fact Attorney Westman served as the notary public for Mr. Elderkin's affidavit.

Notably, 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 Court of Appeals has held that good cause under CPLR §2004 includes law office failure (see Tewari v Tsoutsouras, 75 NY2d 1, 12). It is clear to this Court that the good cause rests in the law office failures of Attorney Westman. 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), no prejudice to the Defendant, and not desiring to visit the errors of counsel upon the client, extends Claimant's time to pay the Court's filing fee.

The Court, in exercising its discretion must also address the failure of the Claimant to comply with an Order of the Court and the resulting opposition filed by the Attorney General on behalf of his client. In granting this extension, the Court will do so "upon such terms as may be just" (CPLR §2004). Such terms commonly include a monetary condition (see LaPlant v State of New York, Ct Cl, Bell, J., Claim No. None, UID#2002-007-153 [March 8, 2002]; see also Kondolf v National Grange Mut. Ins. Co., 259 AD2d 1021) and the Court finds that such a condition is warranted where, inter alia, the Attorney General acted to protect his client's rights when Claimant failed to comply with the existing Order.

Accordingly, and consistent with the foregoing it is hereby

ORDERED, that Claimant's motion is granted and Claimant's time in which to pay the Court's filing fee as set forth in the Court's prior Order, is hereby extended for 45 days from the filed date of this decision and order; and it is further

ORDERED, that Claimant's attorney shall deposit with the Clerk of the Court a check in the amount of $250 payable to the New York State Department of Law within 30 days of the filed date of this decision and order, said check to be transmitted to the Attorney General, and it is further

ORDERED, that the Clerk of the Court is hereby directed to serve a copy of this Decision and Order upon the Claimant by certified mail, return receipt requested, at his address set forth

in the filed Claim.

June 22, 2005
Albany, New York

Judge of the Court of Claims