New York State Court of Claims

New York State Court of Claims

FLOWERS v. THE STATE OF NEW YORK, #2004-030-582, Claim Nos. 103070, 103264, Motion No. M-68858


Synopsis



Case Information

UID:
2004-030-582
Claimant(s):
RICHARD FLOWERS
Claimant short name:
FLOWERS
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
103070, 103264
Motion number(s):
M-68858
Cross-motion number(s):

Judge:
THOMAS H. SCUCCIMARRA
Claimant's attorney:
RICHARD FLOWERS, PRO SE
Defendant's attorney:
HON. ELIOT SPITZER, NEW YORK STATE ATTORNEY GENERALBY: MARY B. KAVANEY, ASSISTANT ATTORNEY GENERAL
Third-party defendant's attorney:

Signature date:
October 25, 2004
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers, numbered 1 to 6 were read and considered on Claimant's motion


for "reconsideration" of a prior motion:

1,2 Notice of Motion; Affidavit in Support of Motion for Reconsideration by Richard Flowers, Claimant, and attached papers

  1. Affirmation in Opposition by Mary B. Kavaney, Assistant Attorney General
4-6 Filed Papers: Flowers v State of New York, Claim Nos. 103070 and 103264 Motion No. M-67831 unreported decision (Scuccimarra, J., April 29, 2004); Claims, Answers

After carefully considering the papers submitted and the applicable law the motion is disposed of as follows:

Since there is no motion for "reconsideration,"[1] the Court has treated Claimant's present application as one to either reargue or renew the prior motion for a change in venue. See Civil Practice Law and Rules §2221.

The original decision denied Claimant's application - based upon Claimant's present residence in Bronx County - for a change of the place of trial from White Plains, New York, to New York, New York. Claimant appeared to be under the impression in the prior motion that his trial would take place in Albany, New York. In his present affidavit, he discusses the problems with travel to Utica, New York, and appends copies of medical records that appear to indicate that he uses a wheelchair to ambulate. As noted in this Court's original decision, any trial of these two claims would be in White Plains, New York, where the undersigned sits. The only additional information Claimant has supplied is that he uses a wheelchair.

"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 any controlling principle of law. Its purpose is not to serve as a vehicle to permit the unsuccessful party to argue once again the very questions previously decided . . . (citations omitted). Nor does reargument serve to provide a party an opportunity to advance arguments different from those tendered on the original application." Foley v Roche, 68 AD2d 558, 567-568 (1st Dept 1979); See §2221(d)(2) Civil Practice Law and Rules. Additionally, such a motion should be brought within thirty (30) days after service of a copy of the order with notice of entry, or in any event prior to the entry of any judgment by the appellate court to which an appeal has been taken. Civil Practice Law and Rules §2221(d)(3); see Bray v Gluck, 235 AD2d 72 (3d Dept 1997), lv dismissed, 91 NY2d 1002 (1998).

A renewal motion asks the Court to consider new facts not previously offered that would change the earlier determination, or a change in the law that would change the prior determination. Civil Practice Law and Rules §2221(e). With respect to new facts, however, the motion should contain "reasonable justification for the failure to present such facts on the prior motion."Civil Practice Law and Rules §2221(e)(3).

The papers submitted do not establish that the Court misapplied any controlling principle of law; therefore the motion for reargument is denied. Similarly, the papers submitted - including as they do additional facts concerning Claimant's use of a wheelchair not included on the prior motion - do not present any rationale for the failure to present such information earlier, nor would such information have changed the Court's decision in any event. Accordingly, the motion to renew is also denied.

Accordingly, Motion Number M-68858 is denied in its entirety.

October 25, 2004
White Plains, New York

HON. THOMAS H. SCUCCIMARRA
Judge of the Court of Claims




[1]The Court also notes that in connection with a different claim Mr. Flowers made a motion for a change in venue that was decided by Judge Sise, that he references in the present motion. [See Flowers v State of New York, Claim No. 100648-A, Motion No. M-67830 unreported decision (Sise, J., June 22, 2004). The Court has not considered any arguments referable to Claim Number 100648-A, and suggests that if Claimant takes issue with that decision, any motion should be made before the proper Judge. See Civil Practice Law and Rules §2221.