New York State Court of Claims

New York State Court of Claims

BEST v. STATE OF NEW YORK, #2005-028-584, Claim No. 108936, Motion Nos. M-70653, M-70596


Claimant's motion, based on new research and a new legal theory, is neither a motion to renew or reargue and, in any event, the Court of Claims Act time limitations are not statutes of limitation. Claimant's motion to vacate is likewise unsupported, either factually or legally.

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):
M-70653, M-70596
Cross-motion number(s):

Claimant's attorney:
Defendant's attorney:
BY: Paul F. Cagino, Esq.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
December 8, 2005

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read on Claimant's motion to renew (Motion No. M-70653):

1. Notice of Motion and Supporting Affidavit of Timothy Best, pro se

2. Affirmation in Opposition of Paul F. Cagino, AAG

and on Claimant's motion to vacate the prior decision of the Court on the ground that he was not served with a copy of the order (Motion No. M-70596):

3. Notice of Motion and Supporting Affidavit (improperly captioned Affirmation) of Timothy Best, pro se

4. Affirmation in Opposition of Paul F. Cagino, AAG

Filed papers: Claim; Answer;

In January of this year, the Court dismissed Claim No. 108936 on the ground that it was untimely (Best v State of New York, UID #2005-028-511, Claim No. 108936, Motion Nos. M-68929, M-68993, M-69292 [Ct Cl 2005], Sise, P.J.). Even if one were to accept the last possible date of accrual, October 2003, the claim, which was served and filed in February 2004, was untimely (Court of Claims Act §10[3]).

Subsequently, Claimant moved, pursuant to CPLR 2221, to reargue or renew his prior motion (Best v State of New York, UID #2005-028-536, Claim No. 108936, Motion No. M-69832 [Ct Cl June 2005], Sise, P.J.) The motion to reargue was denied because Claimant failed to establish that the Court overlooked or misapprehended the relevant facts or misapplied the controlling principle of law. A motion to renew was determined to be inappropriate because Claimant did not submit evidence of additional material facts, facts that existed at the time the prior motion was made but not known to the Claimant or made known to the Court.

In Motion No. M-70653, Claimant states that he is once again moving, pursuant to CPLR 2221, to renew. He does not provide any additional factual information, however, but asserts only that he has discovered legal authority for the proposition that he is entitled to waive the statute of limitations, thus making his claim timely. This cannot provide the basis for a motion to renew. A motion to reargue can be an appropriate vehicle for establishing that the court "overlooked or misapprehended the relevant facts, or misapplied any controlling principle of law," but it is not to be used by a party to "advance arguments different from those tendered on the original application" (Foley v Roche, 68 AD2d 558 [1st Dept 1979], appeal after remand 86 AD2d 887 [2d Dept 1982], appeal denied 56 NY2d 507 [1982]). Claimant has not previously asserted that he is entitled to waive the statute of limitations.

In any event, his argument would be unavailing. As the Court of Appeals has explained, the time limitations contained in section 10 of the Court of Claims Act are not statutes of limitation:
[A] distinction must be drawn between statutes of limitations generally and the filing limitations of the Court of Claims Act. It is well settled that statutes of limitations are designed to promote justice by preventing the revival of stale claims. * * * The time limitations in the Court of Claims Act, however, are distinctly concerned with the subject matter jurisdiction of the Court of Claims as the State has waived its sovereign immunity against suit only to the extent that claimants comply with the provisions of the statute.
(Lyles v State of New York, 3 NY3d 396 [2004] [citations omitted].) Furthermore, the decision on which Claimant relies (In re Saxe's Estate, 82 NYS2d 738 [NY Sur Ct 1948]) merely observes that a debtor may voluntarily choose to pay a debt, despite the fact that he has a defense based on the statute of limitations (i.e. he may waive the statute of limitations defense), whereas the debtor's estate may not do so and must assert the defense. That decision has no application to the instant claim.

In Motion No. M-70596, Claimant asserts that he is entitled to reopen the motion because he was never served with a copy of the Court's decision, making the decision invalid pursuant to CPLR 2220(b). That subdivision reads, in full, as follows: "Service of an order shall be made by serving a copy of the order." [1] In opposition to this motion, counsel for Defendant has provided a copy of the affidavit of service establishing, in a sworn statement, that a copy of the decision and order was served upon Claimant on November 1, 2004 (Cagino affirmation, Exhibit A). In contrast, Claimant's statement that he was not served is simply a bald statement, it was "affirmed" before a notary public rather than being sworn to; and it does not explain how he obtained a copy of the decision, as he must have done in order to make his several motions to renew and/or reargue. The Court is not persuaded that the Defendant, failed to serve Claimant with a copy of the decision and order and, if there had been such a failure, Claimant would not be prejudiced, for his time to appeal does not begin to run until he is served (CPLR 5513[a]).

Claimant's motions are DENIED.

December 8, 2005
Albany, New York

Judge of the Court of Claims

[1] Subdivision (a) of CPLR 2220 provides that an order may be "vacated as irregular" if the successful party is required to file a copy of a decision in the Court where the action is triable or in some other Court and fails to do so. That provision is inapplicable to the instant claim.