New York State Court of Claims

New York State Court of Claims

FERMIN v. STATE OF NEW YORK, #2003-015-330, Claim No. None, Motion No. M-66064


Court denied pro se's second motion to restore claim which was dismissed in 1996. Movant failed to satisfy requirements of CPLR 2221 and there is no statutory authority for the resubmission of a previously decided motion, outside the provisions of § 2221.

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:
Julio Fermin, Pro Se
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Patricia Bordonaro, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
June 13, 2003
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Movant's second motion to restore a claim dismissed by order of the Hon. Thomas J. McNamara dated April 16, 1996 (Defendant's Exhibit E) is denied. On March 4, 1994 the movant filed a claim[1] seeking $5,000,000 in damages for personal injuries allegedly sustained as a result of the issuance of improper prescription eyeglasses by an optometrist at Gouverneur Correctional Facility, Gouverneur, New York on June 23, 1992.

Issue was joined by service of an answer filed April 12, 1994 and the claim was thereafter subject to a calendar call held on April 16, 1996 at which movant appeared by letter informing the Court that he was then incarcerated outside New York State. Judge McNamara of this Court dismissed the claim without prejudice to its being restored on written application to the Court and notice to the defendant within 90 days of movant's return to residence within the State of New York or his release from incarceration.

The movant did not seek to restore the claim until June 20, 2002. In a two page decision and order filed August 19, 2002 (Defendant's Exhibit A) Presiding Judge Susan Phillips Read denied the motion to restore stating, in relevant part, the following:
In order to entertain a motion to restore a claim to the trial calendar, the Court must be informed of the facts underlying the dismissal and, relatedly, the reason for any delay in moving for the requested relief. In exercising its discretion, the Court is guided by CPLR 5015 (a) (1), which governs vacating judgments or orders entered by reason of excusable default and requires that the moving party demonstrate both a reasonable excuse for the default and the existence of a meritorious cause (see, e.g., Cippitelli v Town of Niskayuna, 277 AD2d 540; Matter of Twin Towers Assocs., Ltd. Partnership of Albany v Board of Assessors of City of Albany, 261 AD2d 705, 706; Tiger v Town of Bolton, 150 AD2d 889, 890). Additionally, claimant should demonstrate a lack of prejudice to the opposing party caused by the delay (see, CPLR 3404; Cippitelli v Town of Niskayuna, supra).
The present motion filed on November 18, 2002 and transferred to these chambers pursuant to an order of Judge Read filed January 27, 2003 is similarly deficient. In movant's supporting sworn declaration he alleges that he does not understand English and that fact precluded him from obeying the Court's order and timely moving to restore his claim. He further alleges in conclusory fashion that his claim is valid and meritorious and that he did not know prior to January 2001 that his case had been dismissed. Finally, he alleges that defendant will not suffer prejudice since the case does not require extensive discovery.

The State opposed the motion alleging that the movant has still not met the statutory requirements for a motion to vacate a judgment or order entered upon default pursuant to CPLR 5015 (a) (1) nor has he addressed the factors referenced in Judge Read's aforementioned decision and order filed August 19, 2002. Defense counsel alternatively argues that the claim is jurisdictionally defective as having been untimely served. Since no claim is currently active in this Court a motion to dismiss the claim, even based upon an alleged jurisdictional defect, cannot be countenanced at this time. The Court, therefore, will not address the defendant's alternative argument. Dismissal is warranted but for reasons different from those raised by the defendant.

Judge Read's decision and order filed August 19, 2002 was a final, non-conditional denial of the movant's application to restore his claim. As such he had two options available with regard to that decision and order: (1) he could have timely appealed the order pursuant to Article 55 of the Civil Practice Law and Rules (CPLR), or (2) he could have made a properly supported and timely motion to renew and/or reargue his prior motion pursuant to CPLR 2221. Movant did neither, choosing instead to file the instant motion three months subsequent to Judge Read's decision and order.

Absent the conditional denial of a motion which would have afforded movant an opportunity to file a second motion seeking the same relief, the CPLR does not permit the resubmission of a motion except as provided in Rule 2221. Thus the instant motion is not authorized under the CPLR and must be denied.

Assuming, arguendo, that movant intended the instant motion as one to renew or reargue pursuant to Rule 2221 (see, Ireland v Wilenzik, 296 AD2d 771) denial of the motion would still be required. A motion to reargue a prior motion is governed by CPLR 2221 (d) which provides:

(d) 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 instant motion was neither identified as one to reargue, made within thirty days of service of a copy of the Court's decision and order of August 19, 2002 nor does the motion allege that the Court overlooked or misapprehended the facts nor misapplied existing law. It is well recognized that a motion to reargue "is not to serve as a vehicle to permit the unsuccessful party to argue once again the very questions previously decided (see, Foley v Roche, 68 AD2d 558, 567, lv denied 56 NY2d 509)" (Ulster Sav. Bank v Goldman, 183 Misc 2d 893, 894).

As Judge Read's decision and order discloses, the Court was well aware of movant's professed lack of understanding of the English language and his argument that he should, therefore, be excused from meeting statutory or court imposed deadlines. Accordingly, even interpreting the motion as one to reargue pursuant to CPLR 2221 (d), the motion must be denied (see, Glicksman v Bd. of Educ./Cent. School Bd. of Comsewogue Union Free School Dist., 278 AD2d 364).

Likewise, a motion to renew a prior motion is governed by subdivision (e) of Rule 2221 of the CPLR which provides:

(e) 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.
A careful review of the movant's sworn declaration submitted on the instant motion reveals few, if any, new facts not offered on the prior motion. To the extent movant had not previously alleged that he was unaware his claim had been dismissed until January 2001, that fact does not favor a change in the prior determination since the prior motion determined by Judge Read was not filed until June 20, 2002. Nothing submitted on this motion suggests that the prior motion was timely presented under the terms of Judge McNamara's order of dismissal.

Nor has the movant herein offered a reasonable justification for failing to present this allegedly new fact on the prior motion. The Legislature amended Rule 2221 in 1999 to require that a movant set forth a reasonable justification for its failure to submit on the prior motion the new facts upon which the motion for leave to renew is based (Greene v New York City Hous. Auth., 283 AD2d 458; Ulster Sav. Bank v Goldman, 183 Misc 2d 893). The effect of the 1999 amendment was to place in the statute the proposition previously established by case law that "[i]n order to prevail on a motion to renew, the movant must demonstrate 'both new facts to support the motion and a justifiable excuse for not initially placing such facts before [the] . . . court' (Wagman v Village of Catskill, 213 AD2d 775; see Matter of Gilson v National Union Fire Ins. Co., supra at 898, Matter of Barnes v State of New York, 159 AD2d 753, lv dismissed 76 NY2d 935" (N.A.S. Partnership v Kligerman, 271 AD2d 922). It has been recognized that "[r]enewal is by no means guaranteed and 'is not a second chance freely given to parties who have not exercised due diligence in making their first factual presentation' " (Matter of Barnes v State of New York, supra, at 754, quoting Matter of Beiny, 132 AD2d 190, 210, lv dismissed 71 NY2d 994; see also N.A.S. Partnership v Kligerman, supra).

Movant's failure to satisfy the statutory requirements of CPLR 2221 (e) requires the denial of the motion as one to renew.

The motion to restore the previously dismissed claim to the calendar is denied in all respects for the reasons stated herein.

June 13, 2003
Saratoga Springs, New York

Judge of the Court of Claims

  1. Notice of motion dated October 17, 2002;
  2. Sworn declaration of Julio Fermin sworn to October 16, 2002;
  3. Affirmation of Patricia M. Bordonaro dated December 30, 2002 with exhibits.

[1]The claim was previously designated as Claim No. 88934.