New York State Court of Claims

New York State Court of Claims

BERRIAN v. THE STATE OF NEW YORK, #2006-015-138, Claim No. 112111, Motion No. M-72236


Synopsis


Motion to reargue prior motion which resulted in the dismissal of the claim seeking the return of a filing fee was denied. Relief sought was in the nature of mandamus and not negligence. Court was without jurisdiciton.

Case Information

UID:
2006-015-138
Claimant(s):
LENARD BERRIAN
Claimant short name:
BERRIAN
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
112111
Motion number(s):
M-72236
Cross-motion number(s):

Judge:
FRANCIS T. COLLINS
Claimant’s attorney:
Lenard Berrian, Pro Se
Defendant’s attorney:
Honorable Eliot Spitzer, Attorney General
By: Dennis M. Acton, Esquire Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
December 7, 2006
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant's motion for an order pursuant to CPLR 2221 granting leave to reargue a prior motion to which resulted in the sua sponte dismissal of his claim for lack of jurisdiction is denied. The claim seeks a judgment against the defendant for "negligently" failing to return the fee allegedly paid for the filing of an order to show cause. This Court previously determined by Decision and Order dated August 22, 2006 that the relief sought was in the nature of mandamus and not negligence. The claim was dismissed as the Court of Claims has no jurisdiction to grant strictly equitable relief (see, e.g., Psaty v Duryea, 306 NY 413). Nothing submitted on this motion to reargue alters this conclusion.

It is well settled that a motion to reargue is addressed to the sound discretion of the Court and requires the moving party to demonstrate that the Court overlooked or misapprehended matters of fact or misapplied existing law to the facts presented (see, CPLR, Rule 2221 [d][2]; Spa Realty Assocs. v Springs Assocs., 213 AD2d 781; Peak v Northway Travel Trailers, 260 AD2d 840). Such a motion does not serve as a vehicle to permit the unsuccessful party to argue once again the very questions previously decided (see, Foley v Roche, 68 AD2d 558, 567, leave denied 56 NY2d 507).

The Court is not persuaded by the motion papers that it misapprehended the facts or misapplied the law in arriving at its determination on the prior motion. Claimant's motion to reargue is therefore denied.



December 7, 2006
Saratoga Springs, New York

HON. FRANCIS T. COLLINS
Judge of the Court of Claims


The Court considered the following papers:
  1. Notice of motion dated August 31, 2006;
  2. Affidavit of Lenard Berrian sworn to August 31, 2006 with exhibits;
  3. Affidavit of Dennis M. Acton sworn to September 21, 2006.