New York State Court of Claims

New York State Court of Claims

MUNGIN v. THE STATE OF NEW YORK, #2007-028-553, Claim Nos. 105661, 106036, Motion No. M-73060


Motion to reargue prior decision denying a motion to restore is denied.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
105661, 106036
Motion number(s):
Cross-motion number(s):

Claimant’s attorney:
Defendant’s attorney:
BY: Paul F. Cagino, Esq.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
June 26, 2007

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read on Claimant’s motion for reconsideration of a prior order of this Court:

1. Notice of Motion and Supporting Affidavit of Adrian Mungin, pro se

2. Letter in Opposition of Paul F. Cagino, AAG

Filed papers: Claims; Answers; Decision and Order, Motion No. M-71669, filed Nov. 3, 2006.

Claims No. 105661 and 106036 were dismissed on March 24, 2005 after Claimant failed to appear at a scheduled Calendar Call or to contact the Court prior to the Calendar Call to indicate his intention to proceed with the claims. Claim No. 105661 arose at Mt. McGregor Correctional Facility on July 17, 2001, when Claimant allegedly suffered food poisoning; Claim No. 106036 accrued at the same location on April 20, 2002, when Claimant was struck by the mirror attached to a truck that was backing up. The claims were filed on February 26, 2002 and May 7, 2002, respectively, and neither Claim indicates that a Notice of Intention had been previously served on the Attorney General.

More than a year after the claims were dismissed, Claimant moved to have the actions restored (Motion No. M-71669), asserting that he was unaware that he was required to make a response to the letter from the Chief Clerk which set the claims down for a March 11, 2005 Calendar Call and warned that failure to respond by mail or to appear at the Calendar Call "may result in dismissal of your claim." That motion was denied on the grounds that it was made more than a year after the actions were dismissed, that Claimant failed to present a reasonable excuse for his default, and that Claim No. 105661 was of questionable merit. Claimant has now moved to reargue that decision.

A motion for reargument (CPLR 2221[d]), is addressed to the discretion of the Court and is designed to afford a party an opportunity to establish that the Court overlooked or misapprehended the relevant facts or misapplied a controlling principle of law (Schneider v Solowey, 141 AD2d 813 [2d Dept 1988]; Foley v Roche, 68 AD2d 558 [1st Dept 1979]). Its purpose is not to serve as a vehicle to permit an unsuccessful party to argue once again the very questions previously decided (Fosdick v Town of Hempstead, 126 NY 651 [1891]; Matter of Mehta v Mehta, 196 AD2d 841, 842 [2d Dept 1993]; William P. Pahl Equip. Corp. v Kassis, 182 AD2d 22 [1st Dept 1992]). A motion to renew (CPLR 2221[e]), must be based on "new facts not offered on the prior motion that would change the prior determination or shall demonstrate that there has been a change in the law that would change the prior determination” (CPLR 2221[e][2]; Alexy v Stein, 16 AD3d 989 [3d Dept 2005]; Matter of Beiny v Wynyard, 132 AD2d 190 [1st Dept 1987], lv dismissed 71 NY2d 994 [1988]) and a litigant seeking permission to renew must present a "reasonable justification for the failure to present such facts on the prior motion" (CPLR 2221[e][3]; Bansbach v Zinn, 20 AD3d 629 [3d Dept 2005]).

In support of the instant motion, Claimant states that he was incarcerated on March 11, 2005, that he had written to the Court in February 2005 to inform it of this fact, and that "the Courts responded inquiring when claimant was incarcerated" (Mungin affidavit, ¶ 2). As a result, he states, he did not receive notification of the Calendar Call. This explanation, of course, contradicts his earlier assertion that he did not realize he was required to respond to the letter notifying him of the Calendar Call. It also presents facts that, if true, could have been presented to the Court in support of his earlier motion to restore.

A review of the Court’s files reveals that on February 8, 2005, the Chief Clerk acknowledged receipt of a letter from Claimant that stated he had changed his address, was now at 1515 Hazen Street, East Elmhurst, N.Y.11370, and would like to here form [sic] the court. The acknowledgment letter was sent to that address, and one day later, on February 9, 2005, the Chief Clerk’s letter informing Claimant about the March 11 Calendar Call was also sent to the same address. Consequently, even if the Court were willing to consider this new argument made by Claimant, it would reject his current contention that he was not notified of the Calendar Call. Inasmuch as it would be inappropriate for the Court to grant reargument of the earlier motion, and if such reargument were granted, the Court would adhere to its original ruling, Claimant’s motion is DENIED.

June 26, 2007
Albany, New York

Judge of the Court of Claims