New York State Court of Claims

New York State Court of Claims

FERNANDO v. THE STATE OF NEW YORK, #2001-011-555, Claim No. 101136, Motion No. M-63326


Synopsis


Claimant's motion to reargue a decision and order of this court in which the claim was dismissed as untimely served and for failure to state a cause of action is denied.

Case Information

UID:
2001-011-555
Claimant(s):
ANDON FERNANDO
Claimant short name:
FERNANDO
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
101136
Motion number(s):
M-63326
Cross-motion number(s):

Judge:
THOMAS J. McNAMARA
Claimant's attorney:
Andon Fernando, Pro Se
Defendant's attorney:
Hon. Eliot Spitzer, Attorney General(Glenn C. King, Esq., Assistant Attorney General)
Third-party defendant's attorney:

Signature date:
May 29, 2001
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision


Claimant has moved to reargue a decision and order of this court in which the claim wasdismissed as untimely served and for failure to state a cause of action.

Motions for re-argument are addressed to the sound discretion of the court and may be granted upon a showing that the court overlooked or misapprehended the facts or law or for some reason mistakenly arrived at its earlier decision (Rodney v New York Pyrotechnic Products Co. Inc., 112 AD2d 410). A motion to renew must be based upon additional material facts not presented when the original motion was made (Bassett v Bando Sangsa Co. Ltd., 103 AD2d 728) and should be denied unless the moving party offers a reasonable excuse as to why those facts were not submitted on the original application (Caffee v Arnold, 104 AD2d 352).

Defendant concedes that based upon the facts now presented by claimant and a review of the files maintained by the Attorney General, a timely notice of intention was served albeit with a different spelling of claimant's surname. Based upon the timely filed notice of intention, the claim was timely served and filed.

However, even putting aside that claimant failed to oppose the motion to dismiss and therefore, does not meet the criteria for either a motion to reargue or renew, the decision dismissing the claim should not be disturbed. Claimant has failed to show that in dismissing the claim for failure to state a cause of action the court either mistakenly arrived at its decision or that additional material facts exist which were not presented when the original motion was made. Accordingly, the motion to reargue/renew is denied.

May 29, 2001
Saratoga Springs, New York

HON. THOMAS J. MCNAMARA
Judge of the Court of Claims



Papers Submitted:

  1. Notice of Motion dated March 19, 2001
  2. Affidavit in Support sworn to the 19th day of March, 2001
  3. Affirmation in Opposition of Glenn C. King, Esq. dated April 11, 2001
  4. Unsworn statement in response of Andon Fernando filed on April 18, 2001