New York State Court of Claims


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New York State Court of Claims

BEST v. THE STATE OF NEW YORK, #2005-028-536, Claim No. 108936, Motion No. M-69832


Synopsis


Claimant's motion for leave renew and/or reargue this Court's prior Decision and Order pursuant to CPLR § 2221 is denied.


Case Information

UID:
2005-028-536
Claimant(s):
TIMOTHY BEST
Claimant short name:
BEST
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
108936
Motion number(s):
M-69832
Cross-motion number(s):

Judge:
RICHARD E. SISE
Claimant's attorney:
TIMOTHY BEST, pro se
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERAL
BY: Paul F. Cagino, Esq.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
June 22, 2005
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

The following papers were read on Claimant's application pursuant to CPLR § 2221 seeking to renew and/or reargue prior motions (M-68929, M-68993 and M-69292) which resulted in an Order dated January 31, 2005 (filed February 15, 2005) which dismissed the Claim:

1. Notice of Motion for Preference Trial on Ex Parte Renew Motion and Supporting "Affirmation" of Timothy Best (Best "Affirmation"), with annexed Exhibits, filed March 4, 2005.


2. Affirmation in Opposition of Assistant Attorney General Paul F. Cagino (Cagino Opposition), filed March 15, 2005.


3. Notice of Motion for Preference Trial on Ex Parte Renew Motion and Supporting "Affirmation" of Timothy Best (Best "Affirmation II"), with annexed Exhibits, filed March 21, 2005.


Filed Papers:


Claim No. 108936 filed February 20, 2004;
Order of the Hon. Richard E. Sise, dated and filed March 4, 2004.
Verified Answer filed July 30, 2004.
Decision and Order of the Hon. Richard E. Sise, dated August 13, 2004

and filed August 23, 2004.

Decision and Order of the Hon. Richard E. Sise, dated January 31, 2005

and filed February 15, 2005.


On February 15, 2005, the Court granted the State's motion and dismissed the instant Claim for lack of jurisdiction because Claimant failed to timely serve the Defendant with the Claim pursuant to Court of Claims Act § 11 (Best v New York State Dept. Of Motor Vehicles, Ct Cl, February 15, 2005, Sise,J., Claim No. 108936, Motion Nos. M-68929, M-68993, M-69292). Claimant now moves pursuant to CPLR § 2221, and CPLR § 5015 for leave to renew and/or reargue this Court's prior decision based upon newly discovered evidence. Defendant opposes the instant motion.

A motion pursuant to CPLR § 5015 is addressed to the sound discretion of the Court following the issuance of a trial decision and is used as relief for setting aside a trial decision based upon one of the grounds enumerated in the rule. As this Court has not conducted a trial of the Claim, Claimant's application pursuant to CPLR § 5015 is misplaced, but rather is properly made as an application 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 upon additional material facts which existed at the time the prior motion was made but which were not then known to the party seeking leave to renew and which, therefore, were not made known to the Court (Matter of Beiny v Wynyard, 132 AD2d 190, lv dism 71 NY2d 994). Moreover, renewal should be denied where the party fails to offer a valid excuse for not submitting the additional facts upon the original application, and the remedy should not be available where a party has proceeded on one legal theory on the assumption that what has been submitted is sufficient, and thereafter sought to move again on a different legal argument merely because he was unsuccessful upon the original application (Foley v Roche, 68 AD2d 558).

Assuming arguendo, that the Court were to grant Claimant's motion to reargue, his motion to renew would be denied because Claimant has failed to establish additional material facts which existed at the time the prior motion was made but which were not then known to the Claimant or made known to the Court. Claimant's motion merely rehashes the same factual allegations and legal arguments previously rejected by this Court. Claimant's proper avenue is an appeal. Accordingly, to the extent that Claimant's motion seeks renewal, the motion is denied.

In the event that Claimant is seeking permission for late filing (Best "Affirmation" II

¶ 6 ), the Court can only consider such action when a proper application is made pursuant to the requirements of Court of Claims Act § 10 (6).

Accordingly, Claimant's motion is denied in its entirety.


June 22, 2005
Albany, New York

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