New York State Court of Claims

New York State Court of Claims

MERCER v. THE STATE OF NEW YORK, #2004-031-117, Claim No. 107223, Motion No. M-68509


Synopsis


Claimant's motions to renew and/or reargue are denied

Case Information

UID:
2004-031-117
Claimant(s):
JAMES R. MERCER, JR.
Claimant short name:
MERCER
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
107223
Motion number(s):
M-68509
Cross-motion number(s):

Judge:
RENÉE FORGENSI MINARIK
Claimant's attorney:
JAMES R. MERCER, JR., PRO SE
Defendant's attorney:
HON. ELIOT SPITZER
New York State Attorney General
BY: REYNOLDS E. HAHN, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
September 14, 2004
City:
Rochester
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)

.
Decision

The following papers, numbered 1 to 8, were read on motion by Claimant for reconsideration of my prior Decision and Order denying his motion to compel disclosure:
1. Claimant's Notice of Application (M-68509), filed May 24, 2004;
2. Claimant's unsworn Affidavit, dated May 20, 2004, with attachments;
3. Affirmation in Opposition by Reynolds E. Hahn, dated June 30, 2004 with attachments;
4. Claimant's Reply to Defendant's Affirmation in Opposition, sworn to on July 3, 2004;
5. Claimant's Letter, dated July 22, 2003;
6. Claimant's Reply to Defendant's Response to Notice for Discovery and Inspection, dated July 20, 2003;
7. Claimant's Reply to Defendant's Response to Claimant's Interrogatories, dated July 20, 2003;
8. Filed documents: Claim, Verified Answer, and prior motion decision with supporting papers. Claimant's motion is for "reconsideration" of a previous motion (M-66886) pursuant to CPLR 2221, in which I denied his request for an order compelling discovery. Claimant's motion is improperly denominated, as the CPLR provides litigants with an opportunity to seek either reargument or renewal pursuant to CPLR 2221.

A motion to reargue "shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion, but shall not include any matters of fact not offered on the prior motion" (CPLR 2221(d)(2)). The thrust of Claimant's present motion is that I failed to review and consider certain objections to Defendant's discovery responses that Claimant had made in two separate documents. They are: "Claimant's Reply to Defendant's Response to Notice for Discovery and Inspection," dated July 20, 2003 and "Claimant's Reply to Defendant's Response to Claimant's Interrogatories," dated July 20, 2003. If I consider that Claimant offers these documents as the law or fact that were overlooked or misapprehended on the prior motion, then a motion to reargue is not appropriate as these documents were not presented to the Court as part of the motion, nor did Claimant make any reference to them; it is a motion to renew.

A motion to renew is based on new facts, not offered on the prior motion, that would change the prior determination; the motion "shall contain reasonable justification for the failure to present such facts on the prior motion" (CPLR 2221(e)(2) and (3)). Claimant has provided no justification for his failure to present these documents on the prior motion. He states they existed and, because he had filed them with the Clerk of the Court, I should have reviewed them. I note neither document makes reference to Claimant's original motion. His original motion papers fail to mention these documents, as well. The fact of the matter is Claimant never provided this Court with his specific objections to Defendant's discovery responses in any way, shape or form until now. The motion to renew is denied.

I note that Claimant has laid out his specific objections to Defendant's discovery responses in his Reply to Defendant's Response to Notice for Discovery and Inspection, dated July 20, 2003 and his Reply to Defendant's Response to Claimant's Interrogatories, dated July 20, 2003. I also note Defendant's counsel has explained Defendant's responses in the papers regarding the instant motion. Despite the airing of these issues within the context of Claimant's motion pursuant to CPLR 2221, I do not have these issues properly before me and cannot resolve them now. Should the parties be unable to work out these issues, a Motion to Compel that specifies the exact problems in the motion papers, may be appropriate.

Therefore, it is hereby

ORDERED, that Claimant's motion is denied.

September 14, 2004
Rochester, New York

HON. RENÉE FORGENSI MINARIK
Judge of the Court of Claims