New York State Court of Claims

New York State Court of Claims

VENTIMIGLIA v. THE STATE OF NEW YORK, #2002-028-035, Claim No. 102952, Motion No. M-64822


Claimant's post trial motion for reargument pursuant to CPLR 2221 is denied.

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:
Defendant's attorney:
BY: Kathleen M. Resnick, Esq. Assistant Attorney General
Third-party defendant's attorney:

Signature date:
June 25, 2002

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read on claimant's post trial motion for leave to reargue the Court's trial decision and upon reargument reversing the Court's finding that claimant's recovery is limited by regulation

  1. Notice of Motion and Supporting Affidavit of Sebastian Ventimiglia, pro se, filed March 7, 2002, with annexed Exhibit A ("Ventimiglia affidavit")
  1. Affirmation in Opposition of Kathleen M. Resnick, Esq., AAG, filed March 13, 2002 ("Resnick affirmation")
Filed papers: Claim, filed Aug. 21, 2000; Answer, filed Sept. 26, 2000; Decision and Order filed January 18, 2001; Decision and Order filed June 7, 2001; Trial Decision filed February 6, 2002.

Claimant moves pursuant to CPLR 2221 for leave to reargue this Court's decision, following trial, which resulted in an award for Claimant in the amount of $190.00. The trial followed the Court's earlier decision which granted partial summary judgment to Claimant. In this application, Claimant asserts the Court erred when it limited his recovery by misinterpreting the operative regulation and misapprehended his testimony that at the time of the gift he was unaware of its value. Defendant opposes the motion on the merits and argues that a CPLR 2221 motion is not the proper vehicle for challenging the Court's trial decision.

This Court is of the view that following the issuance of a trial decision, Claimant's proper post verdict application is not pursuant to CPLR 2221, which section is limited to orders made upon a motion but rather is an application pursuant to either CPLR 4404 (b) or CPLR 5015, both of which envision as the relief the setting aside of the trial decision. As such, the instant application is denied.

Assuming arguendo Claimant's CPLR 2221 motion was a proper post verdict application, his application would nevertheless be denied. A motion for leave to reargue pursuant to CPLR 2221 "may be granted only upon a showing 'that the court overlooked or misapprehended the facts or the law or for some reason mistakenly arrived at its earlier decision' " (Pahl Equip. Corp. v Kassis, 182 AD2d 22, 27, quoting Schneider v Solowey, 141 AD2d 813). Reargument does not provide a party with an opportunity to advance new arguments (Rubinstein v Goldman, 225 AD2d 328) and a reargument motion is not "a vehicle to permit the unsuccessful party to argue once again the very questions previously decided" (Foley v Roche, 68 AD2d 558, 567). To the extent that Claimant's motion may be construed as a motion for reargument, Claimant failed to establish that the Court overlooked or misapprehended the relevant facts or that the Court misapplied any controlling principle of law (see, Mangine v Keller, 182 AD2d 476; Foley v Roche, supra). Accordingly, to the extent that Claimant's motion seeks reargument, the motion is DENIED.

Similarly, were the Court to treat the instant application under either of the post verdict CPLR sections the application again would be denied. In the first instance, the CPLR 4404(b) motion is required to be made within fifteen days after decision. Claimant's motion, mailed on February 27, 2002, would be untimely (see, CPLR 4405; Kerner v Kerner, 262 AD2d 1082, lv dismissed, lv denied 94 NY2d 873). Furthermore, relief pursuant to CPLR 4404 (b) is addressed to the discretion of the Court (Carney v Carney, 236 AD2d 574; McCarthy v Port of N.Y. Auth., 21 AD2d 125). In the Court's view, and as already noted, were it to reach the merits of the motion, Claimant's post-trial affidavit merely rehashes the same factual allegations and legal arguments previously rejected by this Court. Inasmuch as Claimant has filed a notice of appeal, the resolution of the central issue to this claim, to wit: is an inmate limited in his recovery to the maximum dollar values contained in DOCS' regulations, a question this Court answered in the affirmative, will be before the Appellate Division.

Lastly, a motion pursuant to CPLR 5015 is addressed to the sound discretion of the Court and must be based upon one of the grounds enumerated in the rule. Claimant's failure to allege the applicability of any of the statutory bases set forth in CPLR 5015 (a) requires its denial.

Accordingly, Claimant's motion is denied in its entirety.

June 25, 2002
Albany, New York

Judge of the Court of Claims