New York State Court of Claims

New York State Court of Claims

COOPER v. THE STATE OF NEW YORK, #2004-019-531, Claim No. 105163, Motion No. M-68060


Synopsis


Case Information

UID:
2004-019-531
Claimant(s):
ROBERT COOPER, ELIZABETH COOPER, SCOTT DIEHL, GEORGE HIGGINS, KIMBERLY KENNEDY, VERNON KENNEDY, ALTON BELFANCE, SUSAN BELFANCE, RANDAL HORNAUER, PETER HORRIGAN, FLORENCE HORRIGAN, ARUNKUMAR PATEL, and ROBERT PERILLO, d/b/a PERILLO'S RESTAURANT
Claimant short name:
COOPER
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
105163
Motion number(s):
M-68060
Cross-motion number(s):

Judge:
FERRIS D. LEBOUS
Claimant's attorney:
LINDENFELD LAW FIRM, P.C.BY: Frank A. Sarat, Esq., of counsel
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERALBY: James E. Shoemaker, Assistant Attorney General, of counsel
Third-party defendant's attorney:

Signature date:
April 2, 2004
City:
Binghamton
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

Claimants move for reargument of a portion of this court's prior Decision and Order pursuant to CPLR 2221. The State of New York (hereinafter "State") opposes the motion.

The facts underlying this matter are contained in greater detail in this court's prior Decision & Order which is the subject of this reargument motion and need not be repeated here. (Cooper v State of New York, Ct Cl, January 14, 2004, Lebous, J., Claim No. 105163, Motion Nos. M-67338 & CM-67722 [UID No. 2004-019-503]).[1] In said prior Decision & Order this court denied claimants' motion for partial summary judgment and granted in part and denied in part defendant's cross-motion for summary judgment. More specifically, this court dismissed those portions of the claim premised upon Highway Law § 46 and the existence of a special relationship between claimants and the State, while finding questions of fact relative to the State's role in diverting and increasing surface water flow into Old Maids Hole (hereinafter "OMH"). Claimants' motion for reargument is addressed only to that portion of said Decision & Order dealing with the existence of a special relationship.[2]


It is well-settled that a motion to reargue is addressed to the discretion of the court and must be premised upon the theory that the court has overlooked or misapprehended significant facts or misapplied the law in its original decision, but does not include the introduction of any new facts. (Matter of Town of Poestenkill v New York State Dept. of Envtl. Conservation, 229 AD2d 650, 651; Foley v Roche, 68 AD2d 558, 567; CPLR 2221 [d]). However, reargument motions are not designed to "[a]fford an unsuccessful party successive opportunities to reargue issues previously decided...." (Matter of Mayer v National Arts Club, 192 AD2d 863, 865).


On the threshold question of whether the court should consider claimants' motion for reargument, the court notes that claimants' assertion that the court made a misstatement of fact warrants review. As such, the court will exercise its discretion and grant claimants' motion for reargument.


In the prior Decision & Order, this court stated, in part, as follows:
[h]ere, the court finds that claimants have failed to establish that their injuries were the result of their justifiable reliance on the assurances and actions - or inactions as the case may be - of the State. (Cuffy, 69 NY2d at 263). For purposes of discussion, the court will divide the State's actions into those that took place prior to 1991 and those that took place after 1991. By claimants' own admissions they were well aware that the State had stopped maintaining OMH in 1991. This flood did not occur until April 2001. As such, for approximately a decade claimants were aware that the State was no longer clearing OMH. The State's decade long abandonment prohibits a conclusion that claimants could have justifiably relied on actions that took place a decade earlier. In this court's view, the State has established as a matter of law that claimants' injuries in 2001 were not the result of any justifiable reliance on any State assurances, actions and/or inactions that took place before 1991. (Cuffy, 69 NY2d at 263).

(Cooper, p 11; emphases added).


Upon reargument, claimants argue they "[m]ade no such admission. The record is barren of any evidence that the Claimants were aware that State maintenance had ceased in 1991. Indeed, this only came to light in the course of Claimants' discovery for this lawsuit." (Claimants' Memorandum of Law, p 2). Upon review, the court finds that claimants are correct that the record does not contain any such admission by claimants,[3] rather the court misconstrued claimants' references to the State's cessation of work in 1991 to include such an admission. Next, claimants argue that this mistake formed the "[f]oundation for Judge Lebous' decision that Claimants failed to show justifiable reliance..." (Claimants' Memorandum of Law, p 2) and proceed to revisit their legal arguments on the special relationship issue. The court disagrees.


This court's prior determination that claimants failed to establish a special relationship with the State was not dependent upon the claimants' awareness that the State had ceased maintenance of OMH in 1991. (Decision & Order, pp 8-13). The court divided the State's actions into those that took place prior to 1991 and those that took place after 1991, the date the State stopped maintaining OMH. The court notes that the accuracy of the 1991 time frame is not disputed, but rather the court's assumption that claimants were aware that the State had ceased such work. Nevertheless, this court's determination that claimants failed to establish a special relationship with the State was not dependent on claimants' awareness that the State stopped maintenance of OMH in 1991.


By way of brief review, in said prior Decision & Order this court reviewed the four elements enunciated by the Court of Appeals that are necessary to establish a special relationship between a municipality and an individual. (Cuffy v City of New York, 69 NY2d 255; Pelaez v Seide, __ NY2d __, 2004 NY Slip Op 02256 [March 25, 2004]). The four elements may be summarized as follows: (1) assumption by the municipality, through promises or actions, of an affirmative duty to act on behalf of the injured party; (2) municipality's knowledge that inaction could lead to harm; (3) direct contact between the municipality and injured party; and (4) the injured party's justifiable reliance on said affirmative undertaking. (Id. at 260).


The court finds claimants' attempt to submit additional legal arguments relative to the first element (assumption by municipality of an affirmative duty to act on behalf of the party who was injured) and third element (direct contact) inappropriate. This court's prior discussion of these elements did not contain any reference to claimants' awareness that the State ceased maintenance in 1991. (Decision & Order, pp 9-10). This court views claimants' reargument as to these elements to be a mere rehashing of the legal arguments previously submitted and rejected. (Foley, 68 AD2d at 567). Here, claimants have made no showing that this court's prior determination on these two elements was connected to the factual misstatement and/or that the court misapplied the controlling principle of law relating thereto.


With respect to the fourth and most important element of whether the injured party justifiably relied on an affirmative undertaking of the State, this court's misstatement that claimants were aware that the State ceased maintenance of OMH in 1991 was not a dispositive factor in the court's ultimate determination. Rather, the court's analysis was tied into the determination that "[m]any of the so-called assurances and actions pointed to by claimants were made between State employees and Village and Town officials, not between the State and claimants." (Decision & Order, pp 11-12). Moreover, the court found "[t]hat the State was acting within its police power to protect the public at large" which did not create a special relationship between the State and claimants. (Decision & Order, p 12). Accordingly, upon reargument, the court finds that the factual misstatement contained in the prior Decision & Order does not warrant a contrary determination and, as such, the court adheres to the prior Decision & Order.


In view of the foregoing, it is ORDERED claimants' motion for reargument, Motion No. M-68060, is GRANTED and, upon such argument, this court adheres to its prior Decision & Order which DENIED claimants' motion for partial summary judgment (Motion No. M-67338) and GRANTED IN PART and DENIED IN PART defendant's cross-motion for summary judgment (Cross-Motion No. CM-67722).


April 2, 2004
Binghamton, New York

HON. FERRIS D. LEBOUS
Judge of the Court of Claims



The Court has considered the following papers in connection with this motion:
  1. DECISION AND ORDER, Lebous, J., Claim No. 105163, Motion Nos. M-67338 & CM-67722, dated January 14, 2004, and filed January 29, 2004.
  2. Notice of Motion No. M-68060, dated and filed February 11, 2004.
  3. Affidavit of Frank A. Sarat, Esq., in support of motion, sworn to February 11, 2004.
  4. Memorandum of Law in support of motion, dated February 11, 2004.
  5. Affirmation of James E. Shoemaker, AAG, in opposition to motion, dated March 10, 2004, and filed March 15, 2004.
  6. Memorandum of Law in opposition to motion, dated March 10, 2004.
  7. Reply Memorandum of Law in support of motion, dated March 12, 2004.


[1]Unreported decisions from the Court of Claims are available via the Internet at

[2]Claimants also filed a Notice of Appeal to the Third Department dated February 11, 2004 from said Decision & Order.
[3]In fact, the record from claimants' prior summary judgment motion is devoid of an affidavit or deposition testimony directly from any of the claimants on this or any issue, other than the Verified Claim itself.