New York State Court of Claims

New York State Court of Claims

MAZUR v. THE STATE OF NEW YORK, #2007-030-549, Claim No. 112660, Motion Nos. M-73719, CM-73833


Synopsis


Defendant’s motion for reargument granted in part, and upon reargument the court adheres to most of its prior determination - which is incorporated herein - but agrees that there is no appropriation cause of action stated in claim number 112660, and dismisses said claim in its entirety. The claim itself indicates that it is a claim for breach of contract, that damages are sought based upon that theory of liability alone and, other than the reference to an intent to file an appropriation claim should the agreement of adjustment - in which the signor waived a right to bring an appropriation claim - be vacated or invalid, no appropriation claim is stated. Claimants’ omnibus cross-motions to reargue the court’s denial of summary judgment on the related claims 112658, 112659, 112660 and 112661, reargument is denied, because the court did not misapprehend or misinterpret the applicable law, when it determined that claimants were required to commence distribution proceedings in accordance with the Eminent Domain Procedure Law §304(E). See also Court of Claims Act §23.

Case Information

UID:
2007-030-549
Claimant(s):
MAZUR BROTHERS REALTY, LLC
Claimant short name:
MAZUR
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
112660
Motion number(s):
M-73719
Cross-motion number(s):
CM-73833
Judge:
THOMAS H. SCUCCIMARRA
Claimant’s attorney:
GOLDSTEIN, GOLDSTEIN, RIKON & GOTTLIEB, P.C.BY: MICHAEL RIKON, ESQ.
Defendant’s attorney:
HON. ANDREW M. CUOMO, NEW YORK STATE ATTORNEY GENERAL
BY: J. GARDNER RYAN, ASSISTANT ATTORNEY GENERAL
Third-party defendant’s attorney:

Signature date:
August 28, 2007
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)
2007-030-550, 2007-030-551, 2007-030-552

Decision

The following papers were read and considered on Defendant’s motion to reargue [M-


73719] and upon Claimants’ cross-motion to reargue [CM-73833]:

1,2 Notice of Motion; Affirmation by J. Gardner Ryan, Assistant Attorney General, counsel for Defendant dated July 10, 2007 and attached exhibits

3,4 Notice of Cross-Motion; Attorney’s Affirmation by Michael Rikon, Counsel for Claimants, dated August 6, 2007

  1. Affirmation by J. Gardner Ryan, Assistant Attorney General, dated August 13, 2007
6-10 Filed Papers: Claims 112660, 112658,112659, 112661[1] and prior motion decisions.

In its prior decision and order relative to Claim Number 112660, the court granted the state’s motion to dismiss the breach of contract cause of action, but also found that a cause of action for appropriation remained, and denied claimant’s motion for summary judgment. [See Mazur Brothers Realty, LLC v State of New York, Decision and Order, UID #2007-030-525, Claim Number 112660, Motion Nos. M-72607, CM-72664 (Scuccimarra, J., filed June 26, 2007).

“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).

Upon review of the papers submitted by the defendant reargument is granted, and upon reargument the court adheres to most of its prior determination - which is incorporated herein - but agrees that it misread the applicable language of Claim Number 112660 when it concluded that a viable appropriation cause of action remained despite the dismissal of the breach of contract claim. The claim itself indicates that it is a claim for breach of contract, that damages are sought based upon that theory of liability alone and, other than the reference to an intent to file an appropriation claim should the agreement of adjustment - in which the signor waived a right to bring an appropriation claim - be vacated or invalid, no appropriation claim is stated. Accordingly, defendant’s motion to dismiss is granted and Claim Number 112660 is dismissed in its entirety.

With regard to claimants’ omnibus cross-motions to reargue the court’s denial of summary judgment on the related claims 112658, 112659, 112660 and 112661, reargument is denied, because the court did not misapprehend or misinterpret the applicable law, when it determined that claimants were required to commence distribution proceedings in accordance with the Eminent Domain Procedure Law §304(E); Court of Claims Act §23.





August 28, 2007
White Plains, New York

HON. THOMAS H. SCUCCIMARRA
Judge of the Court of Claims




[1].Claim Number 112659 is a claim for damages for the partial taking at 90 Lake Street; Claim Number 112658 is a trade fixture claim brought by the tenant at 90 Lake Street, Mazur Bros., Inc.; Claim Number 112661 is a trade fixture claim brought by the tenant at 80 Lake Street.