New York State Court of Claims

New York State Court of Claims

BECKER v. THE STATE OF NEW YORK, #2002-015-282, Claim No. 103881, Motion No. M-65158


Synopsis


Claimant's motion to renew prior motion which denied as moot claimant's request to strike defenses in defendant's answer where the claim was dismissed on a different prior motion.

Case Information

UID:
2002-015-282
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-65158
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:
August 6, 2002
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant's motion seeking leave of court to renew a prior motion which resulted in a decision and order of the court dated April16, 2002 (filed April 25, 2002) denying as moot claimant's request to strike certain defenses in the answer is denied. As the Court noted in its decision and order filed April 25, 2002 the claim (No. 103881) was dismissed for lack of jurisdiction by decision and order filed January 23, 2002 based upon claimant's failure to provide proof of timely service of the claim upon the Attorney General by one of the methods of service authorized by Court of Claims Act § 11 (a). The motion which resulted in the decision and order filed April 25, 2002 was characterized by claimant as one for an extension of time but appeared to the Court to be a motion to strike the defenses asserted in the answer and seeking the appointment of counsel.

The Court held in that decision and order that the claimant's motion was moot and that it would be a waste of judicial resources to consider a motion addressed to an answer to a claim which had already been dismissed (M-64565).

The instant motion, while referring to the Court's order filed on April 25, 2002, apparently seeks for the second time to renew a different earlier motion which resulted in the Court's decision and order filed January 23, 2002 dismissing the claim. Claimant's first motion seeking reconsideration was denied by decision and order filed May 29, 2002. That decision, after noting the absence of a notice of motion, considered the motion based upon the possible waiver of the State's objection to the absence of the notice. In addressing the merits of that motion the Court noted claimant's failure to comply with the statutory requirements for a motion to renew and/or to reargue pursuant to CPLR 2221; his failure to use an affidavit to present factual material; and his failure to allege new facts not presented on the State's prior motion to dismiss the claim.

The motion currently before the Court (M-65158) has a number of technical and legal faults. It, like its predecessor, lacks a notice of motion and fails to comply with the requirements for a motion to renew and/or reargue contained in CPLR Rule 2221. This motion may not be viewed as a motion to renew the prior motion pursuant to subdivision (e) of Rule 2221 since claimant has not presented any new facts not offered on the prior motion nor has he argued any change in the law that would require a different determination (see, CPLR 2221[e]). Accordingly, the instant motion is found not to be a motion to renew.

If viewed as a motion to reargue the State's earlier motion to dismiss the claim (M-64142), it is untimely under paragraph 3 of subdivision (d) of Rule 2221 since it was not made within 30 days after service of the January 2002 order determining the prior motion. Moreover, claimant has not convinced the Court that it overlooked or misapprehended the facts or misapplied the law in its consideration of the prior motion.

Accordingly, claimant's motion for leave to reargue the State's prior dismissal motion is denied.


August 6, 2002
Saratoga Springs, New York

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


The Court considered the following papers:
  1. "Motion and Affirmation To Renew" sworn to May 3, 2002;
  2. Affirmation of Michele M. Walls dated May 31, 2002;
  3. "Notice of Motion Motion Reagruement" [sic] dated June 21, 2002 with exhibit.