New York State Court of Claims

New York State Court of Claims

RIVERS v. THE STATE OF NEW YORK, #2004-028-513, Claim No. 108199, Motion No. M-67748


Synopsis


Case Information

UID:
2004-028-513
Claimant(s):
JOHN RIVERS
Claimant short name:
RIVERS
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
108199
Motion number(s):
M-67748
Cross-motion number(s):

Judge:
RICHARD E. SISE
Claimant's attorney:
JOHN RIVERS, pro se
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERAL
BY: Ellen S. MendelsonAssistant Attorney General
Third-party defendant's attorney:

Signature date:
March 9, 2004
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers were read on Claimant's motion for reargument pursuant to CPLR 2221[1]

1) Notice of Motion and Supporting Affidavit of John Rivers filed December 4, 2003 (Rivers Affidavit) with annexed Exhibit A

2) Affirmation of Assistant Attorney General Ellen S. Mendelson filed December 31, 2003


Filed Papers: Claim filed August 27, 2003; Verified Answer filed September 23, 2003; Order of Honorable Richard E. Sise, filed September 11, 2003


Pursuant to CPLR 2221 (d), Claimant John Rivers ("Claimant") seeks leave to reargue his prior application for a reduction of the Court's filing fee pursuant to CPLR 1101 (f). By order filed September 11, 2003, this Court found that Claimant possessed sufficient resources to pay the statutory fee of $50.00 and therefore denied Claimant's request for a reduction.

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). As this motion contains no new proof, the Court considers it a motion for reargument rather than for renewal.

Claimant asserts this Court failed to follow the holding in Gomez v Evangelista 185 Misc 2d 816, in which § 1101(f) was held to be unconstitutional. Contrary to Claimant's assertion, that decision was reversed on appeal (see Gomez v Evangelista, 290 AD2d 351) a conclusion which is receiving widespread support (see Berrian v Selsky, 306 AD2d 771; see also Payne v Commonwealth Dept. of Corr., 813 A2d 918 [collecting both federal and state court decisions]).

As such, the papers submitted do not establish that the Court misapplied any controlling principle of law; therefore the motion for reargument is denied.

March 9, 2004
Albany, New York

HON. RICHARD E. SISE
Judge of the Court of Claims





[1] The Court has designated the motion as such based upon Claimant's application.