4 Filed papers: Nelson v State of New York, Claim No. None, Motion No.
M-64828, Scuccimarra, J., June 4, 2002, and underlying papers
After carefully considering the papers presented and the applicable law the
motion is disposed of as follows:
"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. Its purpose is not to serve as a vehicle to permit the unsuccessful party
to argue once again the very questions previously decided...(citations
omitted). Nor does reargument serve to provide a party an opportunity to
advance arguments different from those tendered on the original application."
Foley v Roche, 68 AD2d 558, 567-568 (1st Dept 1979); see,
§2221(d)(2) Civil Practice Law and Rules. Additionally, such a motion
should be brought within thirty (30) days after service of a copy of the order
with notice of entry, or in any event prior to the entry of any judgment by the
appellate court to which an appeal has been taken. §2221(d)(3) Civil
Practice Law and Rules; See, Bray v Gluck, 235 AD2d 72 (3d Dept
1997), lv to app dismissed, 91 NY2d 1002 (1998).
Since 1999, however, an application that seeks to change a prior order or
judgment of a court based upon a change in the law is categorized as a motion to
renew, for which no statutory time constraints are imposed. See,
§2221(e)(2) Civil Practice Law and Rules. Case law, however, has continued
the limitation that a motion to renew will not be entertained if the motion is
made after judgment was entered, and beyond the time period within which an
appeal could be taken to the appellate court. Glicksman v Board of Educ.
Cent. School Bd. Of Comsewogue Union Free School District, 278 AD2d 364, 366
(2d Dept 2000).
In the Affirmation filed in opposition to the motion, the Assistant Attorney
General has given no indication as to whether the order was ever served on
Claimant thus there is no way of determining whether the application is timely.
According to the records of the Chief Clerk of the Court of Claims, the Claimant
is pursuing an appeal of the prior order and filed notice of same on July 5,
2002. This does not preclude a motion to reargue or renew - as the Assistant
Attorney General argues - as long as the appeal has not been determined.
Since Claimant asks for reargument based upon a purported change in controlling
decisional law, his motion is actually a motion for renewal and will be treated
as such. Claimant argues that Jacobs v State of New York, 193 Misc 2d
413 (Ct Cl 2002), decided after this Court's Decision and Order in Claimant's
case, should change the prior determination. After careful consideration,
Claimant's motion for renewal is denied. The Court is not convinced that there
has been an intervening and controlling change in the law since the prior
Decision and Order.
In Jacobs v State of New York, supra, Judge Corbett found that
the Defendant was estopped from asserting as a jurisdictional defense that the
absence of a notarization on the verification of a timely Notice of Intention
did not extend the time within which to file the claim. Judge Corbett
distinguished his prior decision in Martin v State of New York, 185 Misc
2d 799 (Ct Cl 2000), wherein he had determined that the failure to verify a
notice of intention or a claim constitutes a jurisdictional defect. He described
the verification of the Notice of Intention in Jacobs, supra, as
defective, as opposed to completely absent. In Jacobs, supra, the
verification lacked only a notary's signature, but otherwise contained language
attesting to the Claimant's having sworn to the truth of the facts contained
therein. While discussing lack of verification - versus defective verification
- the Court nonetheless found that the question was moot, given that the
asserted causes of action in the claim did not depend upon any extension of time
provided by a notice of intention. The discussion, while interesting, was not
really pertinent to the issues involved in the case.
Certainly, this Court recognizes that other decisions have tried to carve
distinctions between verification requirements in the notice of intention versus
a claim. See, e.g., Vogel v State of New York, 187 Misc 2d 186 (Ct
Cl 2000); Williams v State of New York, 77 Misc 2d 396 (Ct Cl 1974);
But, cf., Carpenter v State of New York, (Ct Cl), Collins, J.,
March 28, 2002, UID No.2002-015-233 www.nyscourtofclaims.state.ny.us/decisions.
In order to avoid a piecemeal derogation of what appears to be a firm statutory
requirement, however, this Court is constrained to follow such views. In the
absence of a controlling decision from a higher court, or a legislative
amendment to allow attestations made under the penalties of perjury - such as
that allowed in federal practice for example [See, e.g., USCA §1746;
18 USCA §1621] - proper verification, as statutorily prescribed, is
required to retain jurisdiction in the Court of Claims.
Relevant statutes provide: "...The claim and notice of intention to file a
claim shall be verified in the same manner as a complaint in an action in the
supreme court." Court of Claims Act §11(b). There is no qualifying
language: it is stated in mandatory terms. As to provisions concerning
verification, the Civil Practice Law and Rules provide in pertinent part that
"...A verification is a statement under oath that the pleading is true to the
knowledge of the deponent, except as to matters alleged on information and
belief and that as to those matters he believes it to be true...." §3020(a)
Civil Practice Law and Rules.
That the verification provided should be in affidavit form is prescribed by
§3021 of the Civil Practice Law and Rules. "When an affidavit is
authorized or required it may be sworn to before any officer authorized by law
to take the acknowledgment of deeds in this state, unless a particular officer
is specified before whom it is to be taken." §12 of the General
Construction Law. Individuals authorized to take such acknowledgments within
the State of New York are "...(a) a justice of the supreme court; (b) an
official examiner of title; (c) an official referee; or (d) a notary public."
§298 Real Property Law. The Civil Practice Law and Rules also state that
those persons authorized to take acknowledgment of deeds within the state are
the individuals authorized to administer oaths. See, §2309(a) Civil
Practice Law and Rules.
In this case, Claimant had served a notice of intention upon the Attorney
General within ninety (90) days of the date of accrual of the causes of action
asserted in his claim - indeed, he appears to have served it within two months
with respect to at least two of his claims. He signed the document before five
witnesses - none of whom was qualified to administer oaths - and asserted that
the Notary Public had not been available for 4 days. Claimant's applications to
have the Notice of Intention treated as a claim pursuant to Court of Claims Act
§10(8) or, in the alternative, for late claim relief pursuant to Court of
Claims Act §10(6), were both denied for the reasons stated in this Court's
prior Order and incorporated herein by reference.
Claimant's motion for renewal based upon a change in the law changing this
Court's prior determination is in all respects DENIED.