Filed Papers: Claim filed August 4, 2004; Order of Honorable Richard E. Sise,
filed August 12, 2004
By order filed August 12, 2004, this Court, which deemed Claimant's application
to be made pursuant to CPLR 1101(d), found that Claimant failed to establish her
entitlement to a waiver of the statutory fee of $50.00 and therefore denied
Claimant's request for a fee waiver and issued a 120 day Order. In response,
Claimant has filed a motion pursuant to CPLR 1101(d) for the same relief, which
the Court will consider as being made pursuant to CPLR §2221.
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 the controlling principle of
law (Schneider v Solowey, 141 AD2d 813; Foley v Roche, 68 AD2d
558). Its purpose is not to serve as a vehicle to permit an unsuccessful party
to argue once again the very questions previously decided (Pahl Equip. Corp.
v Kassis, 182 AD2d 22; Fosdick v Town of Hempstead, 126 NY 651). If
such a motion contains new proof, it is a "renewal" motion, rather than a
"reargument" motion, and should be treated as such (Siegel, Practice
Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C2221:7, at 182). An
application for leave to renew must be based on "new facts not offered on the
prior motion that would change the prior determination or shall demonstrate that
there has been a change in the law that would change the prior determination
(CPLR 2221 [e] ; Matter of Beiny v Wynyard, 132 AD2d 190, appeal
dismissed 71 NY2d 994) and must present a "reasonable justification for the
failure to present such facts on the prior motion" (CPLR 2221 [e] ). The
Claimant has offered additional income information on this application
(Sunderlin Affidavit ¶ 3) and as such, the Court deems the instant
application one to renew (see Siegel, Practice Commentaries, McKinney's
Cons Laws of NY, Book 7B, CPLR C2221:7, at 182).
Upon a review of the Claimant's motion papers, the Court denies Claimant's
motion to renew as she has failed to offer any justification for her failure to
include this information in the prior application (Ulster Sav. Bank v
Goldman, 183 Misc 2d 893). Assuming arguendo the
Court were to permit renewal of the prior motion, the Court would nevertheless
adhere to its earlier determination as the new proof does not dissuade the Court
that Claimant is possessed of sufficient means to pay this court's filing fee.
Accordingly, Claimant's motion is denied.
In view of the foregoing, the Court hereby grants Claimant an additional 60
days from the filed date of this Decision and Order in which to pay the filing
fee. If Claimant fails to do so, the Clerk of the Court is directed to close
the file without further judicial action.