New York State Court of Claims

New York State Court of Claims

BECKER v. THE STATE OF NEW YORK, #2002-015-256, Claim No. 103881, Motion No. M-64670


Synopsis


Pro Se claimant's motion seeking reconsideration of prior dismissal motion denied where claimant submitted neither a notice of motion nor an affidavit in support. Unsworn statement is not entitled to judicial cognizance. Moreover, movant failed to allege new facts or a change in the law requiring the Court to reconsider the dismissal of his claim.

Case Information

UID:
2002-015-256
Claimant(s):
RICHARD BECKER
Claimant short name:
BECKER
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
103881
Motion number(s):
M-64670
Cross-motion number(s):

Judge:
FRANCIS T. COLLINS
Claimant's attorney:
Richard Becker, Pro Se
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Michele M. Walls, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
May 21, 2002
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Movant's latest motion, filed without benefit of a notice of motion, seeks reconsideration of the Court's decision and order dated January 16, 2002 (filed January 23, 2002) which dismissed his claim for lack of jurisdiction. For the reasons which follow movant's request for relief is denied. The underlying claim dismissed by the Court in its January 16, 2002 decision and order sought to recover interest upon a worker's compensation claim paid to movant on some unspecified date in the year 2000 and further sought to recover money damages for mental anguish resulting from the Workers' Compensation Board's alleged delay in payment on the claim. Despite having been afforded numerous opportunities to submit proof of timely and proper service of the claim upon the Attorney General claimant failed to do so resulting in the claim's dismissal for lack of jurisdiction.

Both article 22 of the Civil Practice Law and Rules (CPLR) and § 206.8 (a) of the Uniform Rules for the Court of Claims (22 NYCRR Part 206) specify the manner by which a motion is to be made. In fact this Court's rule goes so far as to say "no motion shall be filed with the court unless a notice of motion is served and filed, with proof of service, with the motion papers[1]." In fact, subdivision (d) of section 206.8 provides a suggested format for the notice of motion. Movant's submission lacks the mandated notice of motion and the Court is therefore without jurisdiction to consider his application for relief (J. A. Valenti Elec. Co. v Power Lines Constructors, 123 AD2d 604; see also, Vanek v Mercy Hosp., 135 AD2d 707; Marsico v Southland Corp., 148 AD2d 503).

Even if the Court were to find that the defendant waived any objection to the absence of the notice of motion in this matter (see, Miot v JoCarl Realty Corp., 20 AD2d 664) by responding to movant's request for relief, the motion would still be denied because the claimant has failed to follow the specific directions applicable to motions for reconsideration contained in CPLR Rule 2221. In addition, neither movant's original submission nor his "Reply Affirmation" [sic] dated February 25, 2002 is in affidavit form. Nor was either sworn to before a notary public or other person authorized by law to administer an oath (see CPLR § 2309). Furthermore, the movant has not alleged that he is one of the limited group of professionals authorized by the Legislature to file an affirmation in lieu of an affidavit pursuant to CPLR 2106. His submissions are, therefore, without any legal effect.

Finally, claimant's submissions do not set forth new facts not offered on the prior dismissal motion nor has movant alleged any change in the law necessitating a change in the prior determination. Viewed in the best possible light movant's allegations fail to establish entitlement to the relief requested.

As a result the movant's request for relief is denied in all respects.


May 21, 2002
Saratoga Springs, New York

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


The Court considered the following papers:
  1. "Motion for Reconsideration" dated January 31, 2002 with exhibits;
  2. Affirmation of Michele M. Walls, dated February 20, 2002;
  3. Reply "affirmation" of Richard Becker dated February 25, 2002.

[1]The clerk of the court is requested to review further submissions by this movant and others for compliance with the notice of motion provision of 22 NYCRR § 206.8(a) and to return proposed motions which lack the required notice.