New York State Court of Claims

New York State Court of Claims

TOLBERT v. THE STATE OF NEW YORK, #2004-030-602, Claim No. 105584, Motion No. M-69232


Synopsis



Case Information

UID:
2004-030-602
Claimant(s):
DEMERIS TOLBERT
Claimant short name:
TOLBERT
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
105584
Motion number(s):
M-69232
Cross-motion number(s):

Judge:
THOMAS H. SCUCCIMARRA
Claimant's attorney:
DEMERIS TOLBERT, PRO SE
Defendant's attorney:
HON. ELIOT SPITZER, NEW YORK STATE ATTORNEY GENERALBY: DEWEY LEE, ASSISTANT ATTORNEY GENERAL
Third-party defendant's attorney:

Signature date:
December 13, 2004
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers numbered 1 to 5 were read on Claimant's motion asking for reargument and reconsideration of this Court's prior Decision and Order denying Claimant's application for the issuance of certain trial subpoenas, pursuant to Civil Practice Law and Rules §2221. [Tolbert v State of New York, Claim Number 105584, Motion Number M-68977 (Scuccimarra, J., September 2, 2004)]:
  1. Motion for reargument and reconsideration by Demeris Tolbert, Claimant and attached exhibits
  1. Affirmation by Dewey Lee, Assistant Attorney General
3-5 Filed Papers: Claim, Answer, Amended Answer, Tolbert v State of New York, Decision and Order, Claim Number 105584, Motion Number M-68977 (Scuccimarra, J., September 2, 2004)

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

"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 Civil Practice Law and Rules §2221(d)(2). Additionally, such a motion should be brought within thirty (30) days after service of a copy of the order with written notice of its 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 some additional facts 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. Moreover, Claimant has again failed to provide any proposed subpoenas as required.

Accordingly, motion number M-69232 is in all respects denied.

December 13, 2004
White Plains, New York

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