New York State Court of Claims

New York State Court of Claims

SUNDERLIN v. THE STATE OF NEW YORK, et al, #2005-028-503, Claim No. 109688, Motion No. M-69134


Synopsis


Claimant's motion to reargue the Court's decision denying her application for relief pursuant to CPLR § 1101(d) is denied.

Case Information

UID:
2005-028-503
Claimant(s):
GAYLE LEE SUNDERLIN
Claimant short name:
SUNDERLIN
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
109688
Motion number(s):
M-69134
Cross-motion number(s):

Judge:
RICHARD E. SISE
Claimant's attorney:
GAYLE LEE SUNDERLIN, pro se
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERAL
Third-party defendant's attorney:

Signature date:
January 10, 2005
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers were read on Claimant's motion for reargument pursuant to CPLR 2221[1]

  1. Affidavit of Gayle Lee Sunderlin filed September 23, 2004 (Sunderlin Affidavit)[2]
2) Opposition Papers: None.

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] [2]; 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] [3]). 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.


January 10, 2005
Albany, New York

HON. RICHARD E. SISE
Judge of the Court of Claims




[1] The Court has designated the motion as such based upon Claimant's application.
[2] The Court will deem the application as properly made despite the lack of a Notice of Motion (see 22 NYCRR § 206.8).