New York State Court of Claims

New York State Court of Claims

CARTER v. THE STATE OF NEW YORK, #2001-001-032, Claim No. 99412-A, Motion No. M-63291


Synopsis


Claimant's motion to reargue a prior order of this Court pursuant to CPLR 2221 is denied.

Case Information

UID:
2001-001-032
Claimant(s):
KENNY CARTER
Claimant short name:
CARTER
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
99412-A
Motion number(s):
M-63291
Cross-motion number(s):

Judge:
Susan Phillips Read
Claimant's attorney:
Kenny Carter, Pro Se
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney GeneralBy: Carol A. Cocchiola, Esq., Assistant Attorney General, Of Counsel
Third-party defendant's attorney:

Signature date:
June 22, 2001
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers were read and considered on claimant's motion to reargue a prior order of this Court pursuant to CPLR 2221: Notice of Motion to Reargue, dated March 5 and filed March 9, 2001; "Affirmation" in Support of Motion of Kenny Carter, pro se, dated March 6 and filed March 9, 2001; Affirmation in Opposition of Carol A. Cocchiola, Esq., AAG, dated April 17 and filed April 20, 2001; Carter v State of New York, Ct Cl, unreported decision filed Feb. 28, 2001, Read, P. J., Motion No. M-62827).[1]

This claim was dismissed by the Honorable Philip J. Patti by decision and order filed August 18, 1999 because claimant Kenny Carter ("claimant") had failed to serve the claim upon defendant the State of New York ("defendant" or "the State") properly (Carter v State of New York, Ct Cl, unreported decision filed Aug. 18, 1999, Patti, J., Motion Nos. M-59696, M-59905 and CM-59795). Thereafter claimant made a motion to reconsider, which was also denied (Carter v State of New York, Ct Cl, unreported decision filed April 6, 2000, Patti, J., Motion No. M-60270).[2] He then by motion asked this Court to vacate the orders of the Honorable Philip J. Patti filed August 18, 1999 and April 6, 2000. This Court denied claimant's motion for lack of jurisdiction pursuant to CPLR 5015 (a), which required claimant's motion for relief to be addressed to the Court that rendered the final judgement or order (Carter v State of New York, Ct Cl, unreported decision filed Feb. 28, 2001, Read, P. J., Motion No. M-62827).

Now, claimant seeks to reargue this Court's prior decision and order. He reasons that CPLR 5015 does not require the motion to have been made before the "precise" court. Instead, claimant seems to suggest that any Court of Claims Judge, and especially the Presiding Judge, may entertain such a motion.

Defendant opposes the motion, arguing that the Court continues to lack jurisdiction and claimant has failed to provide any basis for this Court to modify its prior decision and order (Affirmation in Opposition of Carol A. Cocchiola, Esq., AAG, dated April 17 and filed April 20, 2001 ["Cocchiola Aff."], ¶ 5). Additionally, defendant notes that claimant has a similar motion pending before the Hon. Judge Patti (Motion No. M-63292), which was returnable April 18, 2001. According to the Court's database, that motion is still open.

A motion for reargument, addressed to the discretion of the Court, is designed to afford a party an opportunity to establish that the Court overlooked or misapprehended the relevant facts or misapplied the controlling principle of law (Schneider v Solowey, 141 AD2d 813; Foley v Roche, 68 AD2d 558). Its purpose is not to serve as a vehicle to permit an unsuccessful party to argue once again the very questions previously decided (Pahl Equip. Corp. v Kassis, 182 AD2d 22; Fosdick v Town of Hempstead, 126 NY 651). Here, despite claimant's contentions to the contrary, there has been no demonstration that reargument is warranted; and the Court accordingly denies the motion.[3]






June 22, 2001
Albany, New York

HON. SUSAN PHILLIPS READ
Judge of the Court of Claims




[1]Claimant's Notice of Motion erroneously cites CPLR 5015, which governs relief from a judgment and order. This motion, however, is governed by CPLR 2221.
[2]There was also an interim order in this motion (Carter v State of New York, Ct Cl, unreported interim order filed Nov. 10, 1999, Patti, J., Motion No. M-60270).
[3]Claimant also appears to request, in the alternative, that the Court consolidate his dismissed claim with his pending Federal action (Notice of Motion). While the Court of Claims possesses the power to consolidate claims within its own Court when appropriate (Court of Claims Act § 9 [5]), it does not have the power to consolidate a claim with a Federal action.