In reaching its decision, the Court has read and considered the following
(1) Notice of Motion, undated, filed on June 6, 2005 with attachments;
(2) Affirmation of Ellen Matowik, dated July 14, 2005 and filed on July 18,
2005, together with Exhibit "A";
(3) "Claim" (treated as responsive paper) undated and filed August 10,
The Claim herein was, inter alia, for false arrest, excessive use of
force, and improper training of court officers. The Claim resulted from an
altercation that occurred in the Bronx Criminal Court on May 8, 2001. The Claim
had been prepared by the law firm known as Kahn Gordon Timko & Rodriques,
P.C. The firm was relieved as counsel by Decision and Order of Presiding Judge
Susan Phillips Read, filed December 30, 2002. Judge Read's Decision and Order
gave the Claimant sixty days to obtain new counsel and indicated that if new
counsel did not appear within that time frame, a ninety day conditional Order
would be issued. An Order to that effect was issued by Judge Richard E. Sise on
April 8, 2003. Thereafter, on November 16, 2004 a final Order of Dismissal was
entered. On December 13, 2004 the Claimant sought to "reopen" the claim. That
application was denied on March 9, 2005 by a Decision and Order of Presiding
Judge Richard E. Sise.
The present Motion appears to seek reargument and/or renewal of that Decision
After reviewing the supporting letter annexed to the Motion, it appears that
the Claimant is attempting to submit "new" information to excuse her past
failure. Furthermore, the application was brought more than thirty days after
the prior Decision and Order of the Court and would, therefore, be untimely.
Liberty National Bank & Trust Co. v Bero Construction Corp., 29 AD2d
627 (4th Dept 1967). Based upon the above, the Court treats Claimant's
application as one to renew.
Claimant has failed to allege that the "new" facts were unavailable when the
original Motion was argued. In fact, much of the material contained in the
papers was previously available and has been before the Court (see
Ribadeneyra v Gap, Inc., 287 AD2d 362 [1st Dept 2001]).
After reviewing the papers annexed to the application, as well as the
application itself, the Court denies the Motion.