Notice of Motion, Affidavit in Support 1,2
Filed Papers: Decision and Order, dated April 12, 2004 (Motion No.
As noted above, on April 12, 2004 this Court granted defendant's motion and
dismissed this claim based upon untimely service of the
Since the claim was dismissed by a
Decision and Order pursuant to a motion, a judgment of dismissal has not, and
will not, be entered. The Court, therefore, will treat this motion as one for
reargument or renewal under CPLR Rule 2221.
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 the controlling principle of law
(Schneider v Solowey, 141 AD2d 813; Foley v Roche, 68 AD2d 558).
Its purpose is not to serve as a vehicle to permit an unsuccessful party to
argue once again the very questions previously decided (Pahl Equip. Corp. v
Kassis, 182 AD2d 22; Fosdick v Town of Hempstead, 126 NY 651).
On a motion to renew, a party is required to show new facts to support the
motion or a justifiable excuse for the failure to have placed such facts before
the court (Brooks v Inn at Saratoga Assn., 188 AD2d 921).
In her affidavit submitted with this motion, claimant states that her attorney
was responsible for the service and filing of her notice of intention and claim,
and that it was the mistake of her counsel in failing to properly and timely
serve and file the notice of intention and claim.
Therefore, this motion can best be viewed as one to renew since claimant
contends, for the first time, that her attorney failed to properly and timely
serve and file a notice of intention and claim. The records of this Court,
however, indicate that claimant was proceeding pro se at the time she
commenced her claim, as well as in her opposition to defendant's motion to
dismiss. There is no indication that claimant was represented by legal counsel
at any stage of those proceedings.
Furthermore, the Court has reviewed its prior Decision and Order dismissing
this claim, and finds that it correctly applied applicable principles of law in
dismissing this claim. Specifically, it was established to the satisfaction of
this Court that the claim was not timely served, and claimant has not introduced
any evidence whatsoever in this motion to raise any question as to that finding.
Since the service and filing requirements are jurisdictional prerequisites to
the maintenance of a claim (Greenspan Bros. v State of New York, 122 AD2d
249), claimant has provided no basis for this Court to modify its prior Decision
and Order dismissing her claim.
Accordingly, it is
ORDERED, that Motion No. M-68555 is hereby DENIED.