New York State Court of Claims

New York State Court of Claims

VAN STEENBURG v. THE STATE OF NEW YORK, #2001-015-169, Claim No. 103515, Motion No. M-63499


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:
Edward Van Steenburg, Pro Se
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Kathleen M. Resnick, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
July 31, 2001
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant's motion for an order pursuant to CPLR Rule 2221 granting leave to renew or to reargue a prior motion which resulted in a decision and order of this Court dated April 24, 2001 and filed on April 30, 2001 dismissing the instant claim is denied. Claimant's request for alternative relief in the form of an order pursuant to CPLR Rule 5015 relieving the claimant from the Court's April 24, 2001 decision and order on the ground that such decision and order was obtained by fraud, misrepresentation or other misconduct is likewise denied. The claim seeks to recover money damages for the alleged negligent destruction of log books/blotter entries compiled by New York State Police Troop "F" for October 3 and 4, 1992. Claimant alleges that the blotter entries and/or log book entries were destroyed while claimant had a then pending FOIL request for the material. His request was dated July 16, 1998. Claimant alleges that the log books/blotter entries contained exculpatory evidence tending to disprove testimony offered against him by his wife at a criminal trial held in Sullivan County Court in which the claimant was convicted on all counts and sentenced to fifteen to thirty years in prison. Claimant further claims that the denial of access to the police log books/blotter entries deprived him of the opportunity to obtain a vacatur of the judgment of conviction and a new trial and constituted a denial of his constitutional right to due process and equal protection of the law. He seeks total compensation in the amount of $11,500,000.

Rule 2221 of the CPLR as amended in 1999 in relevant part provides:
(d) A motion for leave to reargue:
1. shall be identified specifically as such;

2. shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion, but shall not include any matters of fact not offered on the prior motion; and

3. shall be made within thirty days after service of a copy of the order determining the prior motion and written notice of its entry. This rule shall not apply to motions to reargue a decision made by the appellate division or the court of appeals.

(e) A motion for leave to renew:

1. shall be identified specifically as such;

2. shall be based upon new facts not offered on the prior motion that would change the prior determination or shall demonstrate that there has been a change in the law that would change the prior determination; and

3. shall contain reasonable justification for the failure to present such facts on the prior motion.

(f) A combined motion for leave to reargue and leave to renew shall identify separately and support separately each item of relief sought. The court, in determining a combined motion for leave to reargue and leave to renew, shall decide each part of the motion as if it were separately made. If a motion for leave to reargue or leave to renew is granted, the court may adhere to the determination on the original motion or may alter that determination.
Claimant also seeks relief pursuant to CPLR Rule 5015 (a)(3) which in relevant part provides:
(a) On motion. The Court which rendered a judgment or order may relieve a party from it upon such terms as may be just, on motion of any interested person with such notice as the court may direct, upon the ground of:
* * *
(3) fraud, misrepresentation, or other misconduct of an adverse party;
* * *

It is well settled that a motion to reargue is addressed to the sound discretion of the Court and requires the moving party to demonstrate that the Court overlooked or misapprehended matters of fact or misapplied existing law to the facts presented (see, CPLR, Rule 2221 [d][2]; Spa Realty Assocs. v Springs Assocs., 213 AD2d 781; Peak v Northway Travel Trailers, 260 AD2d 840). Such a motion does not serve as a vehicle to permit the unsuccessful party to argue once again the very questions previously decided (see, Foley v Roche, 68 AD2d 558, 567, leave denied 56 NY2d 507).

"In contrast, a motion to renew 'must be based upon newly discovered evidence that was not available when the original motion was made' (Spa Realty Assocs. v Springs Assocs., supra, at 783; see CPLR 2221). A motion to renew 'must also contain the reasons the evidence was not initially presented, the material nature of the new facts and that they could not have been discovered at the prior proceeding' (Spa Realty Assocs. v Spring Assocs., supra, at 783; see Matter of Barnes v State of New York, 159 AD2d 753, 753-754, lv dismissed 76 NY2d 935; Foley v Roche, supra, at 568; Mully v Drayn, 51 AD2d 660; see also, Grassel v Albany Med Ctr. Hosp., 223 AD2d 803)" (Poestenkill, Town of, Matter of, v New York State Dept. of Envtl. Conservation, 229 AD2d 650, 651).

On this motion claimant has failed to demonstrate that the Court overlooked or misapprehended the facts presented or misapplied the law to the relevant facts on the prior motion. His argument regarding the Court's misapplication of its prior decision in Warburton v State of New York, 173 Misc 2d 879, to the instant claim is unavailing. Claimant's motion for reargument is, therefore, denied.

As set forth above, Rule 2221(e) requires a party moving to renew a prior motion to set forth new facts not offered on the prior motion or demonstrate a change in the law which would affect the Court's determination and, further, requires a movant to provide a reasonable excuse for his or her failure to present such facts on the prior motion. Here, claimant argues that his motion for renewal as well as his motion to vacate the prior order pursuant to CPLR 5015 "is based upon the fraud, misrepresentations, or other misconduct of the defendant's counsel and this Court by excepting [sic] defendant's counsel's false/misrepresentations of fact in their pleadings and engaging this Court in misconduct in violation of its own rules which caused this Court to improperly render its decision and order to dismiss the instant claim and disregard claimant's affidavit in rebuttal sworn to February 22, 2001 . . . " (claimant's affidavit, paragraph 15).

Claimant has not alleged any new facts or a change in the applicable law and his motion is, therefore, not a proper motion to renew pursuant to CPLR 2221 (e). It is, accordingly, denied.

Equally unavailing is claimant's attempt to demonstrate fraud, misrepresentations or misconduct on the part of defendant's counsel in an effort to persuade the Court to vacate its prior decision and order pursuant to CPLR 5015 (a) (3). Claimant's argument in this regard centers upon a letter dated February 26, 2001 from Assistant Attorney General Kathleen Resnick to the Court advising the Court that she did not receive claimant's "rebuttal" affidavit until after the return date of the motion.

An examination of the Court's April 24, 2001 decision and order reveals that neither the Assistant Attorney General's letter nor claimant's rebuttal affidavit were listed among the papers considered on the motion. Rule 2214 (b) of the CPLR, addressed primarily to the time for service of motion papers, identifies those papers which are properly part of a motion. These include the notice of motion and supporting affidavit, answering affidavits, and reply affidavits. The last of which must be served "at least one day before" the return date. Since claimant admits receipt of the defendant's reply affidavit on the return date it must be inferred, contrary to his assertion on this motion, that it was timely served under Rule 2214 and his argument that such reply affidavit should not have been considered by the Court on the prior motion fails.

So too, the CPLR contains no provision for the submission of sur-reply affidavits, or what claimant herein calls his affidavit in rebuttal. Nor does the CPLR authorize or contemplate the submission of any papers related to the motion subsequent to the designated return date or subsequent to any date to which the Court has adjourned the motion. Here no request to adjourn the return date of the motion was received by the Court and no adjournment was granted. Neither claimant's affidavit in rebuttal dated February 22, 2001 and filed on February 27, 2001 nor the letter of defendant's attorney dated February 26, 2001 of which the claimant refers were considered by the Court in its decision and order since they were received subsequent to the return date. Claimant's allegation that the Court's receipt of the February 26, 2001 letter apparently sent directly to chambers rather than through the Clerk's office violated section 206.5 of the Uniform Rules for the Court of Claims is therefore without merit. Moreover, claimant's belatedly filed "affidavit in rebuttal", which is the equivalent of a sur-reply, is "an unnecessary and unauthorized elaboration of motion practice" (see, Scherrer v Time Equities, 218 AD2d 116, 121). It is clear that in New York civil practice there is "no right to sur-reply" (430 E. 86th St. Tenants Comm., Matter of, v State of New York Div. Of Hous. & Community Renewal, 254 AD2d 41, 42), and that when a sur-reply is allowed it should be filed and served with the Court's permission (see, Cadlerock Joint Venture v Khan, 185 Misc 2d 481, 482) which the instant claimant failed to secure. In its review of the papers submitted on this motion the Court finds no "clear evidence of a gross fraud practiced upon the Court" (Cohen v Crimenti, 24 AD2d 587, 588), or evidence of misrepresentation or misconduct on the part of the defendant's attorney. As a result, claimant's motion is in all respects denied.

July 31, 2001
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:

  1. Notice of motion dated May 10, 2001;
  2. Affidavit of Edward Van Steenburg sworn to May 10, 2001, with exhibits;
  3. Affirmation of Kathleen M. Resnick dated May 30, 2001 with exhibits;
  4. Affirmation of Richard P. Barrantes dated March 16, 2001 with exhibits;

Submitted but not considered:

  1. Unsworn declaration in reply of Edward Van Steenburg dated June 4, 2001.