New York State Court of Claims

New York State Court of Claims

STROMBERG v. THE STATE OF NEW YORK AND THE NEW YORK STATE THRUWAY AUTHORITY, #2003-010-004, Claim No. 87253, Motion No. M-66199


Synopsis


Claimant's motion for reargument is denied.

Case Information

UID:
2003-010-004
Claimant(s):
LINDA STROMBERG
Claimant short name:
STROMBERG
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
87253
Motion number(s):
M-66199
Cross-motion number(s):

Judge:
Terry Jane Ruderman
Claimant's attorney:
COBLENCE & WARNERBy: Kenneth E. Warner, Esq.
Defendant's attorney:
HON. ELIOT SPITZER
Attorney General for the State of New York
By: Ohrenstein & BrownSean Dwyer, Esq.
Third-party defendant's attorney:

Signature date:
February 11, 2003
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

The following papers numbered 1-2 were read and considered by the Court on claimant's motion for reargument:
Notice of Motion, Attorney's Supporting Affirmation and Exhibit, Memorandum of Law...........................................................................................................................1

Attorney's Affirmation in Opposition.......................................................................2

Claimant seeks reargument, pursuant to CPLR 2221, of that portion of this Court's Decision, after trial on liability, filed December 4, 2002, which apportioned 60 percent liability to claimant. CPLR 2221 Motion affecting prior order is "[a]motion for leave to renew or to reargue a prior motion." A motion for reargument is not the proper form for challenging this Court's Decision after trial. Rather, claimant should have moved pursuant to CPLR 4404(b) "within fifteen days after decision" (CPLR 4405). Accordingly, insofar as claimant's motion may be construed as a motion brought under CPLR 4404(b), it is DENIED as untimely.

At page one of claimant's Memorandum in Support of Reargument, it is stated that "... claimant does not challenge the Court's evaluation of the witnesses or its specific factual findings about the events involved in the accident ... [n]or does claimant challenge the Court's statement of various legal principle to be considered." Claimant seeks a reapportionment of claimant's liability allocation to be reduced to zero or to some other de minimis percentage.

To the extent that claimant's motion is one for reargument, it is noted that "[a] motion for reargument, addressed to the discretion of the court, is designed to afford a party an opportunity to establish that the court overlooked or misapprehended the relevant facts, or misapplied any controlling principle of law" (see Foley v Roche, 68 AD2d 558, 567). A reargument motion is not "a vehicle to permit the unsuccessful party to argue once again the very questions previously decided" (id.). In any event, claimant has not established 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, insofar as claimant's motion seeks reargument, that application is DENIED.


February 11, 2003
White Plains, New York

HON. TERRY JANE RUDERMAN
Judge of the Court of Claims