New York State Court of Claims

New York State Court of Claims

GODFREY v. THE STATE OF NEW YORK, #2004-009-46, Claim No. 108290, Motion No. M-68555


Synopsis


Claimant's motion for reargument or renewal under CPLR 2221 was denied.

Case Information

UID:
2004-009-46
Claimant(s):
WENDY LEE CAZA GODFREY
Claimant short name:
GODFREY
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
108290
Motion number(s):
M-68555
Cross-motion number(s):

Judge:
NICHOLAS V. MIDEY JR.
Claimant's attorney:
WENDY LEE CAZA GODFREY, Pro Se
Defendant's attorney:
HON. ELIOT SPITZER
Attorney GeneralBY: No Appearance.
Third-party defendant's attorney:

Signature date:
August 23, 2004
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant has brought this motion seeking a "Stay of Judgment" based upon a prior Decision and Order of this Court which dismissed her claim for untimely service.

The following papers were considered by the Court in connection with this motion:
Notice of Motion, Affidavit in Support 1,2


Filed Papers: Decision and Order, dated April 12, 2004 (Motion No. M-67936)

As noted above, on April 12, 2004 this Court granted defendant's motion and dismissed this claim based upon untimely service of the claim.[1] 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.


August 23, 2004
Syracuse, New York

HON. NICHOLAS V. MIDEY JR.
Judge of the Court of Claims



[1] See Decision and Order to Motion No. M-67936. Trial decisions and other decisions and orders of this Court are available via the Internet at