Allan Vollmer and Denise Vollmer (hereinafter “claimants”)
previously made separate motions for permission to treat their notices of
intention as a claim pursuant to Court of Claims Act §10(8), relating to
the alleged negligence of the State of New York on July 27, 2002 (M-69615 and
M-69616). By a Decision and Order filed May 16, 2005, this Court granted the
Defendant now moves this Court, pursuant to CPLR 2221, to reargue the
According to CPLR 2221(d), a motion for leave to reargue:
1. shall be identified specifically as such;
2. shall be based upon matters of fact or law allegedly overlooked or
misapprehended by the court in determining the prior motion, but shall not
include any matters of fact not offered on the prior motion; and
3. shall be made within thirty days after service of a copy of the order
determining the prior motion and written notice of its entry. This rule shall
not apply to motions to reargue a decision made by the appellate division or the
court of appeals.
Defendant argues that this Court “overlooked or misapprehended the
relevant facts or misapplied [a] controlling principle of law” (Foley v
, 68 AD2d 558). It is defendant’s position, that the Court
abandoned its position in Artache v State of New York
(Lack, J., M-66864,
In Artache, this Court relied on Grande v State of New York, 160
Misc 2d 383, and ruled that defendant was not required to go beyond the four
corners of the notice of intention in investigating the accident. The Court has
previously distinguished Grande from the case at bar and is satisfied
that the previous analysis remains correct. The notice of intention in
Artache described the incident location as Wildwood State Park,
Riverhead, New York. Movant did not attach, annex or incorporate any further
documentation such as an accident report delineating a geographical location in
the notice of intention. This meant that defendant was only on notice that
movant’s accident happened somewhere in a state park comprising hundreds
of acres. Further, the description was not augmented when movant later, in the
notice of intention, stated that the accident occurred near a sand dune since
Wildwood State Park has a large beach area with many sand dunes.
In the present case, claimants specifically refer to a police accident report
attached to the notices of intention. Rather than restate the entire accident
report, claimants incorporated its contents by reference. The accident report
refers to a mile marker and states that the accident occurred 80 feet east of
Route 110 on the South Service Road in Huntington, New York.
In Lufker v State of New York, 239 AD2d 565, the Court ruled that a
report filed by campus police shortly after an incident occurred provided the
defendant with the exact location of an incident, even though the notice of
intention failed to provide an adequate location.
In the instant matter, the report is part of the notices of intention and
clearly provides the location of the incident.
In reviewing the prior decision, the Court affirms its prior findings.
Defendant’s motion to reargue is denied.
.The following papers have been read and
considered on defendant’s motion: Notice of Motion to Reargue dated June
17, 2005 and filed June 20, 2005; Affirmation in Support of Ellen Matowik, Esq.
with annexed Exhibits A-B dated June 17, 2005 and filed June 20, 2005;
Affirmation in Opposition of Richard A. Engelberg, Esq. with annexed Exhibits
A-B dated June 30, 2005 and filed July 5, 2005; Reply Affirmation of Ellen
Matowik, Esq. with annexed Exhibit A dated July 12, 2005 and filed July 14,