New York State Court of Claims

New York State Court of Claims

MUJICA v. THE STATE OF NEW YORK, #2004-028-548, Claim No. 104358, Motion No. M-66906


Claimant's motion for leave to renew and/or reargue this Court's prior Decision and Order pursuant to CPLR § 2221 is granted to an extent.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant's attorney:
WARNER & SCHEUERMANBY: Jonathon D. Warner, Esq.
Defendant's attorney:
BY: Cornelia MogorAssistant Attorney General
Third-party defendant's attorney:

Signature date:
August 6, 2004

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read on Claimants' application pursuant to CPLR § 2221 seeking to renew and/or reargue a prior motion (M-64608) which resulted in decision and order dated April 10, 2003 (filed April 29, 2003) which dismissed the Claim:

1. Notice of Motion and Supporting Affirmation of Jonathon D. Warner (Warner Affirmation), Affidavits of Rodrigo Mujica (Mujica Affidavit) and Xirong Wei (Wei Affidavit), filed June 3, 2003 with annexed Exhibits 1 - 10.

2. Affirmation in Opposition of Assistant Attorney General Cornelia Mogor

(Mogor Affirmation) filed July 30, 2003

3. Letter of Jonathon D. Warner (Warner Letter) received February 9, 2004.

4. Letter of Assistant Attorney General Cornelia Mogor (Mogor Letter) received February 26, 2004.

Filed Papers:

1. Claim No. 104358 filed June 1, 2001;
2. Verified Answer filed August 6, 2001;
3. Amended Claim filed August 30, 2001;
4. Verified Answer to Amended Claim filed October 12, 2001;
5. Original Motion #M-64608 and Supporting Papers filed January 23, 2002
6. Decision and Order of the Hon. Richard E. Sise, dated April 10, 2003 and filed April 29, 2003
7. Notice of Appeal filed May 21, 2003

On April 29, 2003, the Court granted the State's Motion and dismissed the instant Claim for defective verification relying upon the Appellate Division, Third Department's decision in Lepkowski v State of New York (302 AD2d 765).[1] Claimants' attorney now moves to renew and/ or reargue based upon new facts not offered on the prior motion in light of controlling precedent that was decided after the original motion. Claimants argue they were never afforded the opportunity to show that they met the requirements for verification of the claim because the Defendant failed to advance such argument in the original motion. Moreover, they argue that the Defendant's failure to timely reject said verification constitutes a waiver of their rights to contest its validity.

The Defendant argues that although the defective verification was not timely rejected, the instant claim should be dismissed on the basis of Claimants' failure to properly state a claim as required by § 11 (b) of the Court of Claims Act (Mogor Letter, ¶ 4).

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). If such a motion contains new proof, it is a "renewal" motion, rather than a "reargument" motion, and should be treated as such (Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C2221:7, at 182). An application for leave to renew must be based upon additional material facts which existed at the time the prior motion was made but which were not then known to the party seeking leave to

renew and which, therefore, were not made known to the Court (Matter of Beiny v Wynyard, 132 AD2d 190, appeal dismissed 71 NY2d 994). As this motion pertains to controlling precedent that was decided after the original motion, it cannot be considered a motion to reargue and, as such, this portion of Claimants' motion is denied.

What remains, and is the subject of the motion to renew, is what effect Lepkowski v State of New York (1 NY3d 201) has on the Court's prior decision and order. For the following reasons the Court grants the motion to renew, vacates its prior decision and order now on the alternative ground advanced by Defendant in the original motion and not reached at the time, dismisses the Claim.
It is well established that the requirements set forth in Court of Claims Act § 11 are jurisdictional in nature and, as such, must be strictly construed (see Lichtenstein v State of New York, 93 NY2d 911, 912-913; Dreger v New York State Thruway Auth., 81 NY2d 721, 724). The Court of Appeals' recent decision in Lepkowski v State of New York, 1 NY3d 201, spoke to an issue which had stirred judicial debate within the Court of Claims; to wit, what steps must a Defendant take when confronted with a defective verification. Writing for the Court of Appeals, Judge Susan Phillips Read, former Presiding Judge of the Court of Claims, instructed that "there is no basis for treating an unverified or defectively verified claim or notice of intention any differently than an unverified or defectively verified complaint is treated under the CPLR in Supreme Court. Section 11(b) therefore embraces CPLR 3022's remedy for lapses in verification." (Lepkowski v State of New York, supra).

Notwithstanding the verification issue, the Court of Appeals held that claims were jurisdictionally defective for nonconformity with Court of Claims Act § 11 (b)'s substantive pleading requirements which require a claim to specifically state, inter alia, the time and place where the action accrued (Lepkowski v State of New York 1 NY3d 201, 207). A claim must be sufficiently definite to enable the State to investigate the claim(s) promptly and ascertain its liability under the circumstances (Heisler v State of New York, 78 AD2d 767). Moreover, the State does not have the burden to investigate or assemble such information that the claimant is obligated to allege (Lepkowski citing Cobin v State of New York, 234 AD2d 498).

In Lepkowski (1 NY3d 201) 377 claimants sought overtime pay. The claimants' vaguely alleged the time of accrual as occurring in "July 1992 to the present." They also asserted the claims arose at their various work locations throughout New York State. The claimants failed to identify the state agency or department for which each claimant worked or list the particularities of where the claim(s) arose. The Court of Appeals. . .found that "all that the State may guess from these allegations is that some or all of the 377. . . claimants worked some number of hours in excess of 40 in some or all of the work weeks over many months and years." The claim was found to be defective because it was insufficiently definite to enable the State to promptly investigate and ascertain its liability. In the instant action, the Claimants alleged the claim(s) accrued "in or about 1983 and continuing to the present" and the place of accrual as "New York City Courts." The claimants completely fail to provide the times when and the places where such claims arose. All that the State may guess from these allegations is that some or all of the Claimants, including unknown persons similarly situated, were denied the rights and benefits of public employees at some point during the last 21 years at numerous court locations throughout New York City (Warner Affirmation, Exhibits 6 and 7). The State does not have the burden to investigate or ascertain information that the Claimants fail to specifically state. Although the instant Claim specifies a total sum sought, it fails to allege a specific time and place of accrual and, consistent with the Court of Appeals' holding in Lepkowski must be found as jurisdictionally defective pursuant to the requirements of Court of Claims Act § 11(b).

Although the Court did not reach the issue of failing to plead on the original motion because at the time the verification issue rendered the additional flaws superfluous, Court of Claims Act § 11and Lepkowski (1 NY3d 201) demands the same result. Accordingly, the foregoing claim is dismissed.

August 6, 2004
Albany, New York

Judge of the Court of Claims

[1] A complete factual and procedural history is found in the court's prior decision and order (Mujica v State of New York, Ct Cl, Sise, J., Claim No. 104358, Motion No. M-64608).