New York State Court of Claims

New York State Court of Claims

VOLLMER v. THE STATE OF NEW YORK, #2005-033-137, Claim No. None, Motion No. M-70308


Synopsis



Case Information

UID:
2005-033-137
Claimant(s):
ALLAN VOLLMER and DENISE VOLLMER
Claimant short name:
VOLLMER
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
None
Motion number(s):
M-70308
Cross-motion number(s):

Judge:
James J. Lack
Claimant’s attorney:
Kreines & Engelberg, Esqs.By: Richard A. Engelberg, Esq.
Defendant’s attorney:
Eliot Spitzer, New York State Attorney GeneralBy: Ellen Matowik, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
September 9, 2005
City:
Hauppauge
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

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 motions.


Defendant now moves this Court, pursuant to CPLR 2221, to reargue the decision[1].

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 Roche, 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, 9/29/03; 2003-033-032[2]).

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.



September 9, 2005
Hauppauge, New York

HON. JAMES J. LACK
Judge of the Court of Claims




[1].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, 2005.
[2].This number is the UID number assigned by the Court of Claims and can be used to search the Court of Claims website (www.nyscourtofclaims.state.ny.us) to obtain a copy of the decision.