Notice of Motion, Affirmation in Support, with Attachments 1,2
Affirmation in Opposition, with Exhibits 3
Affidavit in Support (Reply), with Attachments 4 In a prior motion (Motion No.
M-69951/Cross-Motion No. CM-69969)
, this Court
granted defendant's motion to dismiss the claim, due to a lack of personal
jurisdiction based upon improper service of the claim on the Attorney General.
Claimant has now brought this motion, seeking relief under CPLR § 5015, as
well as permission to renew or reargue the motion under CPLR Rule 2221(d) and
(e). Upon a review of the papers submitted herein, the Court finds that the
proper avenue for the relief sought by claimant is a motion to renew pursuant to
Rule 2221(e), and this application will be determined accordingly.
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
Rule 2221[e]and ).
In its prior Decision and Order dismissing this claim, the Court accepted
defendant's proof that claimant had served his claim upon the Attorney General
by regular, first class mail, and not by certified mail, return receipt
requested, as required by Court of Claims Act § 11(a). In his response in
opposition to that motion, claimant had submitted evidence of two separate
mailings by certified mail, return receipt requested, which he contended
established proper service of his claim upon the Attorney General. The Court,
in its Decision and Order, specifically rejected both of these attempts to
establish proper service submitted by claimant. The Court found that one of the
certified mailings was directed to the Court of Claims, and not to the Attorney
General, and therefore on its face such evidence failed to establish proper
service. The second certified mailing referred to by claimant, although
addressed to the Attorney General, was not mailed until after the claim was
actually received by the Attorney General, thereby negating that contention as
In the instant motion, claimant has now submitted evidence of a third certified
mailing, dated February 17, 2005, and addressed to the Attorney General.
Claimant contends that the claim was served on the Attorney General by this
mailing, and further contends that such evidence constitutes new facts not
considered by the Court in its prior decision, and finally that such mailing
satisfied the jurisdictional requirements of Court of Claims Act § 11(a).
Additionally, claimant also contends that he was unable to provide this evidence
on the original motion, since State correction officials had denied him access
to his legal documents, thereby providing reasonable justification for his
failure to present these facts to the Court at the time the original motion was
In response, defendant's attorney acknowledges that the Attorney General
received a certified mailing from claimant corresponding to the certified mail
receipt number and date referred to by claimant in the February 17, 2005
mailing. In its opposition to this motion, defendant has submitted a copy of
the envelope used for this certified mailing, as well as a copy of the document
which was included therein (see Exhibits A and B to Item 3). The document
submitted by the defendant (see Exhibit A) is a Notice of Intention to File a
Claim dated February 17, 2005, the same date set forth on the disbursement
request form for certified mail submitted by claimant. The Court has reviewed
this Notice of Intention to File a Claim (referring to an incident with a
correction officer which occurred on February 15, 2005) and finds that it
pertains to an entirely different action, and bears no relationship whatsoever
to Claim No. 110540 (a claim sounding in bailment which arose on July 2,
In short, based upon a review of the documentation submitted by the defendant
in opposition to this motion, the Court finds that claimant has not submitted
any new or credible evidence establishing proper service of this claim. Upon
review of all documentation submitted by both claimant and defendant, the Court
finds that claimant has failed to establish proper service of his claim upon the
Attorney General, and that there is no basis whatsoever for this Court to
reconsider its original decision dismissing the claim.
Based on the foregoing, therefore, it is
ORDERED, that Motion No. M-70241 is hereby DENIED.