New York State Court of Claims

New York State Court of Claims

ALVEAR v. THE STATE OF NEW YORK, #2003-030-533, Claim No. NONE, Motion No. M-66438


Synopsis


Motion for reargument and renewal denied. Civil Practice Law and Rules § 2221.

Case Information

UID:
2003-030-533
Claimant(s):
JUAN MANUEL ORTIZ ALVEAR Caption has been amended to reflect the only proper Defendant.
Claimant short name:
ALVEAR
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :
Caption has been amended to reflect the only proper Defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
NONE
Motion number(s):
M-66438
Cross-motion number(s):

Judge:
THOMAS H. SCUCCIMARRA
Claimant's attorney:
JUAN MANUEL ORTIZ ALVEAR
Defendant's attorney:
HON. ELIOT SPITZER, NEW YORK STATE ATTORNEY GENERALBY: MARY B. KAVANEY, ASSISTANT ATTORNEY GENERAL
Third-party defendant's attorney:

Signature date:
April 14, 2003
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers numbered 1 to 4 were read on Claimant's motion asking this Court to "reconsider" its prior Decision and Order denying Claimant's application to allow filing of a late claim, which the Court has treated as motion to reargue and/or renew pursuant to Civil Practice Law and Rules §2221. [Alvear v State of New York, Claim Number NONE, Motion Number M-65709, Scuccimarra, J., January 30, 2003]:
1,2 Notice of Motion, Affidavit in Support by Juan Manuel Ortiz Alvear, Claimant, sworn to February 18, 2003, and accompanying exhibits
3 Affirmation by Mary B. Kavaney, Assistant Attorney General, dated March 17, 2003,[1] and accompanying exhibits
4 Filed papers: Alvear v State of New York, Claim No. NONE, Motion No. M-65709,[Scuccimarra, J., January 30, 2003]; 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, Civil Practice Law and Rules §2221(d)(2). 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. Civil Practice Law and Rules §2221(d)(3); See, Bray v Gluck, 235 AD2d 72 (3d Dept 1997), lv dismissed, 91 NY2d 1002 (1998).
A renewal motion asks the Court to consider new facts not previously offered that would alter the earlier determination, or a change in the law that would change the prior determination. Civil Practice Law and Rules §2221(e). With respect to new facts, however, the motion should contain "reasonable justification for the failure to present such facts on the prior motion." Civil Practice Law and Rules §2221(e)(3).
The papers submitted do not establish that the Court misapplied any controlling principle of law; therefore the motion for reargument is denied. Similarly, the papers submitted - including as they do additional facts not included on the prior motion - do not present any rationale for the failure to present such information earlier, nor would such information have changed the Court's decision in any event. Accordingly, the motion to renew is also denied.


April 14, 2003
White Plains, New York

HON. THOMAS H. SCUCCIMARRA
Judge of the Court of Claims




[1] The Assistant Attorney General has also erroneously included a notice of motion with what - taken in context - are clearly her opposition papers to Claimant's motion. Accordingly, the Court has treated Defendant's papers as opposition to the motion in chief instead of an attempt to make a cross-motion.