New York State Court of Claims

New York State Court of Claims

FLEMMING v. THE STATE OF NEW YORK, #2005-009-056, Claim No. 109259, Motion No. M-70723


Claimant's motion to renew or reargue a prior motion was denied.

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:
Defendant's attorney:
Attorney General
BY: G. Lawrence Dillon, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant's attorney:

Signature date:
November 21, 2005

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant has brought this motion seeking an order vacating judgment under CPLR Rule 5015, as well as for permission to renew and reargue a previous motion pursuant to CPLR Rule 2221.

The following papers were considered by the Court in connection with this motion:
Notice of Motion, "Affirmation" in Support, with Attachments 1,2

Defendant's Response, with Exhibit 3

Claimant's "Affirmation" (Reply) 4

In a prior Decision and Order (Motion No. M-69913/Motion No. M-70044/Cross-Motion No. CM-69945)[1], this Court granted defendant's motion to dismiss the claim based upon improper service of the claim. In this motion, claimant now seeks relief under CPLR Rule 5015, as well as permission to renew or reargue the motion under CPLR Rule 2221(d) and (e). Upon a review of the submitted papers, the Court finds that the proper avenue for the relief sought by claimant is a motion to renew or reargue pursuant to Rule 2221, and this application will be determined accordingly. 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]). A motion to renew, on the other hand, 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]).

In its prior decision and order, the Court determined that claimant had served both his notice of intention to file a claim and his claim by regular mail, and not by certified mail, return receipt requested, as required by Court of Claims Act § 11(a). In his opposition to that motion, and in the papers before this Court on the instant application, claimant did not produce any proof whatsoever to establish proper service of either his notice of intention or his claim. It was claimant's contention then, as now, that defendant had waived any objection to improper service. In the prior motion to dismiss, however, the Court found that the defendant had raised the defense of improper service with sufficient particularity in its answer, fulfilling the requirements of Court of Claims Act § 11(c), and that defendant therefore had not waived any objection as to improper service.

In this application, claimant makes reference to another decision and order made by this Court with regard to the instant claim, in which the Court denied claimant's application for an order permitting him to add additional named defendants to the claim.[2] Apparently, claimant now contends that defendant waived any objection as to improper service since it was not raised in this prior motion (Motion No. M-68660). This prior motion, however, was brought by claimant and merely sought permission to add additional named defendants. Jurisdictional issues were not raised or addressed in that motion, and there is no basis to conclude that the State waived any jurisdictional defense when it responded to that motion.

Accordingly, based upon a review of all the papers submitted herein, as well as upon further consideration of the Court's prior decision and order dated August 29, 2005, the Court finds that claimant has not offered any new facts that would change the prior determination of this Court, nor did the Court overlook or misapprehend any matters of fact or law in determining the prior motion. As a result, claimant's application to renew and reargue the prior motion is without merit.

Based on the foregoing, therefore, it is

ORDERED, that Motion No. M-70723 is hereby DENIED.

November 21, 2005
Syracuse, New York

Judge of the Court of Claims

[1] Flemming v State of New York, Ct Cl, August 29, 2005, Midey, J., Claim No. 109259 (UID No. 2005-009-043). Unpublished decisions and selected orders of the Court of Claims are available via the Internet at
[2] Flemming v State of New York, Ct Cl, August 16, 2004, Midey, J., Claim No. 109259, Motion No. M-68660, UID No. 2004-009-42.