New York State Court of Claims

New York State Court of Claims

FIRTH v. THE STATE OF NEW YORK, #2002-015-223, Claim No. 103492, Motion No. M-64308


Synopsis


Claimant's motion to reargue prior dismissal motion denied since affidavit of service of a notice of intention to file claim alleged overlooked by Court had not bee submitted to Court on the motion sought to be reargued but rather was submitted on a motion made and decided six months prior to that motion. Such affidavit thus constitutes new evidence which cannot be considered on reargument. On motion to renew said affidavit not found to change the determination since service of the notice of intention was untimely occurring outside 90 day period prescribed by Court of Claims Act § 10 (3-b) when measured from June 23, 2000 accrual date.

Case Information

UID:
2002-015-223
Claimant(s):
GEORGE FIRTH
Claimant short name:
FIRTH
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
103492
Motion number(s):
M-64308
Cross-motion number(s):

Judge:
FRANCIS T. COLLINS
Claimant's attorney:
Carl G. Dworkin, Esquire
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Dennis M. Acton, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
February 14, 2002
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Movant[1] seeks leave to renew and/or reargue a prior motion ( M-63607) which resulted in an order dated October 1, 2001 (filed October 11, 2001) dismissing the claim. Should leave be granted, then upon the Court's reconsideration of the prior motion movant asks that the claim be reinstated. The motion is, in all respects, denied. Claim No. 103492 was one of a series of claims filed by the instant movant in which he sought to recover money damages for alleged libel, slander and defamation [sic] arising out of the defendant's 1996 publication and alleged republication over the Internet of an article entitled "The Best Bang for Their Buck." Several of those claims, including the one at issue here, have been dismissed. Only one (Claim No. 103734) remains viable at this time.

On this motion movant argues that the Court misapprehended the facts on the State's prior dismissal motion. Specifically, he argues that dismissal of the claim for failure to timely serve a notice of intention or serve and file a claim was in error because a notice of intention to file a claim had been served upon the Office of the Attorney General. It is alleged that service of the notice of intention on September 25, 2000 provided notice of the claim within 90 days of an alleged Internet republication on June 23, 2000, the most recent of the alleged dates of republication. He further argues that the State never asserted as an affirmative defense the claimant's failure to timely file [sic] a notice of intention to file a claim regarding the June 23, 2000 republication "other than as part of its affirmative defense that what Claimant refers to as republication on that date was not republication at all" (Dworkin affirmation para. 6).

Movant's attorney, in paragraph 11 of his supporting affirmation, asserts with regard to his request to reargue the prior motion that the Court "has overlooked the fact of service of the Notice of Intention to File [a] Claim on September 25, 2000 as to all republications, as described in the foregoing and as reflected by the record maintained by the Clerk of the Court." With regard to the portion of the motion seeking to renew the prior motion, movant's attorney submitted as Exhibit "A" an affidavit attesting to the fact of service of a notice of intention to file a claim upon the Office of the Attorney General on September 25, 2000. Movant seeks a reversal of the Court's order dismissing the claim based upon such newly submitted proof of service.

The State opposed the motion asserting that its fourth defense set forth in paragraph SEVENTH of the amended verified answer alleges with particularity (see, Court of Claims Act § 11 [c]) that the Court lacks jurisdiction because neither a notice of intention nor a claim was served upon the Attorney General within 90 days of accrual as required by sections 10 (3), 10 ( 3-b) and 11(a) of the Court of Claims Act. The State argues that the movant's service of the notice of intention on September 25, 2000 for a cause of action in defamation accruing on June 23, 2000 was untimely under Court of Claims Act § 10 (3-b) since the 90 day period measured from such date expired on September 21, 2000. Defense counsel further asserts in opposition to this motion that the court's decision rendered on the prior motion (M-63607) "establishes as the law of this case the finding that the single and only publication of the report in question occurred on December 16, 1996, and claimant has failed to present in this motion, or anywhere else in the record of this case, proof or [sic] facts establishing that the June 23, 2000 date represented a republication."[2]

Initially, counsel are advised that future motions seeking leave to reargue and the affirmation opposing any such motion should have attached to them photocopies of the previously submitted documents to which their supporting or opposing affirmations refer. Here, movant's attorney on the instant motion made reference in paragraph "7" to a prior affidavit [of George Firth] "in support of the Motion for Leave to File Late Claim"[3] and defense counsel made reference to a defense set forth in the State's answer to the claim[4] yet neither supplied a copy of the referenced document. The parties' failure to provide the referenced documents for the Court's review might otherwise render the motion defective and justify its denial (see, Phillips v Village of Oriskany, 57 AD2d 110, 113; 7 Weinstein-Korn-Miller, NY Civ. Prac. par 5701.23; Gillon v Merrill Lynch Interfunding, Inc., 1995 WL 776573 (N.Y. Sup) affd 221 AD2d 234). Here, however, because of the long and tortuous history of this matter and the fact that both attorneys are equally guilty of the omission, the Court will overlook such failure and consider the motion.

Motions to renew and/or reargue are governed by Rule 2221 of the CPLR which provides specific rules for each type of motion as well as a combined motion. A combined motion, such as the instant one, requires the movant to separately state and support each type of relief and requires the court to determine each part of the combined motion as if it were separately made (see, CPLR § 2221[f]). Additionally, subdivision (d) sets forth the following relative to a motion seeking to reargue:
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.
The Court finds that the movant has specifically identified that part of his motion which seeks leave to reargue and has made the motion within 30 days of service upon movant's attorney of the subject decision and order thus satisfying the above noted statutory conditions one and three. However, the second requirement for a reargument motion, set forth above, has not been met. The matter of fact alleged to have been overlooked or misapprehended by the Court is the timely service of a notice of intention to file a claim allegedly demonstrated by the submission of an affidavit of service. That affidavit, however, was not submitted for consideration on the dismissal motion sought to be reargued. As noted above, movant's attorney states in paragraph "7" of his affirmation in support of the instant motion that timely service of the notice of intention was declared "[i]n the affidavit in support of the Motion for Leave to File Late Claim". However, the motion for late claim relief was decided six months prior to this Court's determination of the dismissal motion and the subject affidavit was not resubmitted on the motion sought to be reargued. Since the movant failed to submit the affidavit of service of the notice of intention on the prior motion, the affidavit constitutes new matter not eligible for consideration on a motion to reargue pursuant to CPLR 2221 (d) (2). The portion of the combined motion seeking reargument is, accordingly, denied.

Subdivision (e) of Rule 2221 sets forth the following requirements for a motion for leave to renew:
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.
Although movant herein has separately identified the portion of his motion seeking leave to renew the prior motion, and, arguably, has offered a reasonable excuse for the failure to present the affidavit of service on the prior dismissal motion the affidavit does not constitute new facts "that would change the prior determination" since the newly offered affidavit merely demonstrates that service of the notice of intention was untimely since it occurred outside the 90 day period prescribed for the service of a notice of intention or service and filing of a claim pursuant to Court of Claims Act § 10 (3-b) when measured from the June 23, 2000 accrual date asserted in the claim.

It is well established that the time frames set forth in section 10 of the Court of Claims Act for the service of a notice of intention or service and filing of a claim must be strictly construed (Lichtenstein v State of New York, 93 NY2d 911; Speers v State of New York, 285 AD2d 872) and will be enforced absent a waiver not applicable here, (see, Court of Claims Act § 11 [c]). The Court finds that the State's fourth defense set forth in its verified amended answer is sufficient to avoid application of the Court of Claims Act's waiver provision.

The instant motion for leave to renew the prior dismissal motion is likewise denied for the reason set forth above.


February 14, 2002
Saratoga Springs, New York

HON. FRANCIS T. COLLINS
Judge of the Court of Claims


The Court considered the following papers:
  1. Notice of motion dated November 9, 2001;
  2. Affirmation of Carl G. Dworkin dated November 9, 2001 with exhibit;
  3. Affidavit of Dennis M. Acton sworn to December 5, 2001.

[1]Claim No. 103492 was dismissed by decision and order of the Court dated October 1, 2001. Since there is no pending claim all references herein to movant refer to George Firth.
[2]Since the notice of intention was untimely served and no claim was filed within the statutory period, it is unnecessary to address this allegation.
[3]Movant did not seek to renew or reargue the late claim motion (M-62834) which was denied in a decision and order dated April 11, 2001 and the supporting affidavit of George Firth sworn to December 6, 2000 was not before the Court on the State's dismissal motion.
[4]The pleadings are, of course, filed with the Court and would have been available except for the fact that this claim had been dismissed. Upon dismissal all papers are returned to the Chief Clerk by chambers.