This is now the fifth time Ms. Joseph has sought the intercession of this Court
in one fashion or another in order to bring before it a claim alleging the
disappearance of unspecified documents held in the Office of the Civil Court
Clerk in Kings County relative to a lawsuit involving Ms. Joseph, involving,
perhaps, collection of a judgment. Indeed, the Decisions are marked
collectively as Exhibit A to the Defendant’s Affirmation in Opposition.
Initially, a claim based upon the same facts was dismissed because it had been
served and filed more than ninety (90) days after its accrual. [See
Joseph v State of New York, Claim No. 109228, Motion No. M-68501,
Decision and Order (Scuccimarra, J., August 19, 2004)]. The claim had been
served and filed in April 2004. [id.]. The apparent date
of accrual was August 2002, premised upon her request for documents and the
Clerk’s failure to produce them. [id.]. The Court then suggested
that perhaps Claimant could make a motion for late claim relief.
A subsequent motion for a six month extension of some unspecified subject, was
denied, with the Court again noting that perhaps what Claimant sought was late
claim relief. [See Joseph v State of New York, Claim No. 109228;
Motion No. M-69087, Decision and Order (Scuccimarra, J., October 28, 2004)].
Thereafter, Claimant made a motion for late claim relief, that was denied.
[See Joseph v State of New York, Claim No. None; Motion No.
M-69420, Decision and Order (Scuccimarra, J., April 11, 2005)].
Thereafter, the Court denied reargument of the April 11, 2005 denial of
Claimant’s application for late claim relief in a Decision and Order that
was served upon Ms. Joseph with notice of entry on October 27, 2005. [See
Joseph v State of New York, Claim No. None, Motion No. M-70167, Decision
and Order (Scuccimarra, J., October 19, 2005)].
A subsequent motion for late claim relief again placed before the Court exactly
the same defects presented in earlier motion practice. [See Joseph v
State of New York, Claim No. None; Motion No. M-70936, Decision and Order
(Scuccimarra, J., February 28, 2006)]. The Court could not discern from the
moving papers what occurred in the underlying civil action or actions, and how
Claimant was damaged by the actions of any court employee.
The present motion, read as either a motion to reargue and/or renew, or as
another late claim motion, suffers from similar infirmities.
“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); see Bray v Gluck, 235 AD2d 72 (3d Dept
1997), lv dismissed 91 NY2d 1002 (1998).
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).
The papers submitted do not establish that the Court misapplied any controlling
principle of law; therefore the motion for reargument is denied. Similarly, even
assuming that new facts are asserted, the papers submitted do not present any
rationale for the failure to present such information earlier. Accordingly, the
motion to renew is also denied.
In order to determine an application for permission to serve and file a late
claim, the Court must consider, “among other factors,” the six
factors set forth in §10(6) of the Court of Claims Act. The factors stated
therein are: (1) whether the delay in filing the claim was excusable; (2)
whether the State had notice of the essential facts constituting the claim; (3)
whether the State had an opportunity to investigate the circumstances underlying
the claim; (4) whether the claim appears meritorious; (5) whether substantial
prejudice resulted from the failure to timely serve upon the Attorney General a
claim or notice of intention to file a claim, and the failure to timely file the
claim with the Court of Claims; and (6) whether any other remedy is available.
The Court is afforded considerable discretion in determining whether to permit
the late filing of a claim. See e.g. Matter of Gavigan v State of New
York, 176 AD2d 1117, 1118 (3d Dept 1991). The presence or absence of any
particular factor is not dispositive Bay Terrace Coop. Section IV, Inc. v
New York State Employees’ Retirement System Policemen’s &
Firemen’s Retirement System, 55 NY2d 979, 981 (1982); Broncati v
State of New York, 288 AD2d 172 (2d Dept 2001).
Additionally, the motion must be timely brought in order to allow that a late
claim be filed “. . . at any time before an action asserting a like claim
against a citizen of the state would be barred under the provisions of article
two of the civil practice law and rules . . . ” Court of Claims Act §
10(6). Here, it is difficult to discern what the applicable statute of
limitations is since what happened is unclear.
Additionally, Claimant has failed to append a copy of her proposed Claim, as
, and thus the Court cannot ascertain
whether the particulars of the claim are stated, including a more specific date
of accrual, a description of what conduct is alleged, and what damages were
Court of Claims Act §11-b; Sinski v State of
, 265 AD2d 319 (2d Dept 1999). What appears to be alleged is
that Ms. Joseph is attempting to collect a judgment debt resulting from an
eviction proceeding. Any dates alluded to occurred as early as 1997 and 2002,
although Claimant now mentions something about another lawsuit she has commenced
in Civil Court in Brooklyn in March or May 2006. How the State of New York or
its agents is implicated or how she has suffered monetary damage as a result of
State action is unclear.
Finally, none of the factors noted above that are required to be addressed in
order for the Court to consider an application for permission to serve and file
a late claim are discussed in the moving papers beyond listing the factors and
saying they apply.
Accordingly, Claimant’s Motion Number M-72003 is in all respects