New York State Court of Claims

New York State Court of Claims

LYNCH v. THE STATE OF NEW YORK, #2006-033-181, Claim No. 105839, Motion No. M-70938


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):

James J. Lack
Claimant’s attorney:
Elovich & AdellBy: Glenn L. Sabele, Esq.
Defendant’s attorney:
Eliot Spitzer, New York State Attorney GeneralBy: Gail P. Pierce-Siponen, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
March 16, 2006

Official citation:

Appellate results:

See also (multicaptioned case)


This claim arises from the injuries to Cornelius Lynch, Jr. (hereinafter "claimant") due to the alleged negligence of the State of New York (hereinafter “State”). The claim is based upon the State’s failure to protect claimant in that the State negligently secured an accident site. The claim of Helen Lynch is derivative in nature. The trial of this claim was bifurcated. The Court’s Decision, which granted defendant’s trial motion to dismiss, was filed on October 13, 2005. Judgment was entered on October 20, 2005. Claimants appealed the Judgment on or about November 1, 2005.

Claimants now move this Court for a motion to reargue and renew pursuant to CPLR 2221[1].

In opposition to the motion, defendant argues that CPLR 2221 is not appropriate, as it applies only to prior motions.

Defendant’s procedural argument is correct. CPLR 2221 seeks leave to renew or reargue a decision of a prior motion. It is not applicable to decisions/verdicts of a trial. The appropriate remedy would have been for claimants to make their motion pursuant to CPLR 4404(b) which states:
After a trial not triable of right by a jury, upon the motion of any party or on its own initiative, the court may set aside its decision or any judgment entered thereon. It may make new findings of fact or conclusions of law, with or without taking additional testimony, render a new decision and direct entry of judgment, or it may order a new trial of a cause of action or separable issue.

Even if the Court were to accept claimants’ motion as one pursuant to CPLR 4404(b), it could not decide the motion. Pursuant to CPLR 4405, any motion pursuant to CPLR 4404 must be made within 15 days of the date of decision, verdict or discharge of a jury. In the instant matter, the decision was filed on October 13, 2005. Claimants’ motion was not filed until November 14, 2005. Further, CPLR 4405 states that a “court shall have no power to grant relief after argument or submission of an appeal from the final judgment.” As previously noted, claimant filed his appeal on or about November 1, 2005.

Based upon the foregoing, claimants’ motion is denied.

March 16, 2006
Hauppauge, New York

Judge of the Court of Claims

[1].The following papers have been read and considered on claimants’ motion: Notice of Motion dated November 10, 2005 and filed November 14, 2005; Affirmation in Support of Glenn L. Sabele, Esq. with annexed Exhibits A-B dated November 10, 2005 and filed November 14, 2005; Affirmation in Opposition of Gail P. Pierce-Siponen, Esq. with annexed Exhibit A dated December 2, 2005 and filed December 6, 2005; Affirmation in Further Support of Glenn L. Sabele, Esq. dated December 17, 2005 and filed December 23, 2005.