New York State Court of Claims

New York State Court of Claims

SYRKIN v. THE STATE OF NEW YORK, #2006-030-572, Claim No. 110738, Motion No. M-71887


Claimant’s Motion for “reconsideration” of the Court’s prior Decision and Order dismissing the Claim denied.

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):
Cross-motion number(s):

Claimant’s attorney:
Defendant’s attorney:
Third-party defendant’s attorney:

Signature date:
September 21, 2006
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers numbered 1 to 7 were read and considered on Claimant’s motion for “reconsideration” of the Court’s prior Decision and Order filed April 17, 2006 dismissing the claim:
1-3 Notice of Motion; Affidavit by Mark Syrkin, Claimant, in Support of Motion; Affirmation by James M. Maloney, Attorney for Claimant and attached exhibits

  1. Affirmation in Opposition by Gail Pierce-Siponen, Assistant Attorney General and attached exhibits
5-7 Filed Papers: Claim, Answer, Decision and Order, Syrkin v State of New York, UID# 2006-030-524,Claim No. 110738, M-71122, CM-71179 (Scuccimarra, J., April 17, 2006).

Mark Syrkin alleges in his Claim that he was not reappointed to his position as an Assistant Professor in the Science Department of State University of New York (SUNY) Maritime College as a means of increasing the percentage of female professors in the department, as opposed to the financial concerns given as a rationale. In the Claim, he indicates that on or about May 9, 2002 he was informed that his appointment - that was due to expire on August 31, 2003 - would not be renewed. [Claim Number 110738, ¶2]. Thereafter, Claimant alleges, on or about November 14, 2002, a reviewing committee convened pursuant to the collective bargaining agreement and sent a report to the Chancellor finding that there was no financial exigency and recommending reappointment. [id.].

Claimant further alleges that nonetheless, on or about May 5, 2003, the Chancellor made a final decision that the appointment would not be renewed past the August 31, 2003 expiration. [id.]. A copy of a letter dated May 5, 2003 from the Chancellor to Claimant was appended to the Notice of intention as an exhibit, and was included in the submissions made as part of Claimant’s prior motion to strike certain affirmative defenses, and in opposition to Defendant’s cross-motion for summary judgment dismissing the claim.

In the Decision and Order that Claimant now asks the Court to “reconsider”, the Court dismissed the claim as untimely, finding that the claim had accrued on May 5, 2003, that a notice of intention to file a claim was untimely served, and therefore did not operate to extend the time within which to serve and file a claim, and rendered the claim ultimately served upon the Attorney General’s Office on April 11, 2005 untimely.

Initially, and as noted by the Assistant Attorney General, there is no motion for “reconsideration” although perhaps what the Claimant seeks is reargument or renewal of his prior application. Accordingly, that is how the Court has treated Claimant’s motion.

“A motion for reargument, addressed to the discretion of the court, is designed to afford a party an opportunity to establish that the court overlooked or misapprehended the relevant facts, or misapplied any controlling principle of law. Its purpose is not to serve as a vehicle to permit the unsuccessful party to argue once again the very questions previously decided . . . (citations omitted). Nor does reargument serve to provide a party an opportunity to advance arguments different from those tendered on the original application.” Foley v Roche, 68 AD2d 558, 567-568 (1st Dept 1979); Loris v S & W Realty Corp., 16 AD3d 729, 730 (3d Dept 2005); See Civil Practice Law and Rules §2221(d)(2
Additionally, such a motion should be brought within thirty (30) days after service of a copy of the order with notice of entry, or in any event prior to the entry of any judgment by the appellate court to which an appeal has been taken. Civil Practice Law and Rules §2221(d)(3)
Bray v Gluck, 235 AD2d 72 (3d Dept 1997), lv dismissed, 91 NY2d 1002 (1998). The Decision and Order was served upon Claimant’s attorney with notice of entry on May 22, 2006 thus the motion is timely. [Affirmation of Gail Pierce-Siponen, Assistant Attorney General, Exhibit A].

A renewal motion asks the Court to consider new facts not previously offered that would change the earlier determination, or a change in the law that would change the prior determination. Civil Practice Law and Rules §2221(e)
With respect to new facts, however, the motion should contain “reasonable justification for the failure to present such facts on the prior motion.” Civil Practice Law and Rules §2221(e)(3)
see Stocklas v Auto Solutions of Glenville, Inc., 9 AD3d 622, 625 (3d Dept 2004).

Claimant attaches a photocopy of an envelope from the Chancellor’s Office of the State University of New York postmarked June 2, 2003, and indicates that it was in this envelope that the May 5, 2003 letter terminating his appointment was mailed. [See Affidavit by Mark Syrkin, Exhibit 2]. No explanation is offered for why Claimant now proffers evidence he presumably had available to him when prior motion practice was before this Court, nor is any explanation offered by his attorney. Counsel for the Claimant then argues that the Court should view the date of accrual of the claim as June 7, 2003, five (5) days after mailing: a date never mentioned in any papers filed here or in copies of federal court papers included as exhibits. Citing to Skiptunas v State of New York, 290 AD2d 868 (3d Dept 2002), Counsel argues that the accrual date should be measured from the alleged mailing of the letter on June 2, 2003, plus a reasonable five days for mailing and receipt. Notably, Skiptunas v State of New York, supra, involved malicious prosecution and related causes of action under a different regulatory framework, not pertinent here. See 8 NYCRR §83.1 et seq. Mr. Syrkin’s claim involves alleged violation of the Human Rights Law. See Executive Law §296. It is axiomatic that accrual of a claim is measured from when damages were reasonably ascertainable: a topic discussed at some length in the underlying decision herein.

Moreover, this new date is not mentioned anywhere in the Notice of Intention to file a Claim: the vehicle that would extend the time within which to serve and file a claim if timely served within ninety (90) days of accrual, and the document that is meant to apprise the Defendant of the time when and place where the claim arose. See Court of Claims Act §11(b).

Accordingly, the papers submitted do not establish that the Court misapplied any controlling principle of law; therefore the motion for reargument is denied. Similarly, the papers submitted - including as they do additional facts not included on the prior motion - do not present any rationale for the failure to present such information earlier, nor would such information have changed the Court’s decision in any event. Accordingly, the motion to renew is also denied.

September 21, 2006
White Plains, New York

Judge of the Court of Claims