New York State Court of Claims

New York State Court of Claims

GRAY v. STATE OF NEW YORK, #2007-037-058, Claim No. 109750, Motion No. M-73850


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:
David W. Polak Attorney at Law, P.C.By: David W. Polak, Esq.
Defendant’s attorney:
Hon. Andrew M. Cuomo
New York State Attorney General
By: Wendy E. Morcio, Esq.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
January 10, 2008

Official citation:

Appellate results:

See also (multicaptioned case)


The following were read and considered with respect to Claimant’s motion to renew and reargue a prior decision of the Court granting summary judgment dismissing the claim:
1. Claimant’s notice of motion and supporting affirmation of David W. Polak, Esq.

dated August 8, 2007;

2. Supporting affidavit of Paul Gray sworn to August 8, 2007;

3. Opposing affidavit of Assistant Attorney General Wendy E. Morcio sworn to

September 7, 2007;

4. Faxed memorandum from David W. Polak, Esq. dated November 12, 2007

enclosing copy of a 2006 Third Department decision.

Filed papers: Claim filed August 23, 2004; Answer filed September 30, 2004.

Claimant seeks leave to renew and reargue the Court’s decision and order dated May 8, 2007 which granted Defendant’s motion (M-72650) for summary judgment and dismissed the claim (see Gray v State of New York, Ct Cl, May 8, 2007, Moriarty, J., Claim No. 109750, Motion Nos. M-72650 and CM-72769, UID # 2007-037-023).[1]

Procedurally, a motion for leave to renew must be based on new information that was not in existence or was unavailable at the time of the original motion that would change the prior determination, or it must be based on a change in the law that would alter the prior determination (see CPLR 2221 (e) (2); Boreanaz v Facer-Kreidler, 2 AD3d 1481 [2003]). In his accompanying affidavit, the Claimant states that “[p]rior to April of 2007"[2] he reported that the water was not working in his apartment located at the Defendant’s housing facility where he resided. According to Claimant, some unspecified person subsequently told him that he could no longer live in the apartment because of this condition. Claimant then surmises that Correction Officer Kraft or the management of the apartment facility was somehow involved with the broken shower or with his unsubstantiated eviction from his apartment. While Claimant’s counsel argues that the purported new information was not known nor available at the time of the original motion, Claimant admits in his affidavit that at least part, if not all, of this information was in existence and known to him prior to April of 2007 when oral argument on the original motion was heard, and yet, Claimant fails to set forth any justification for his failure to present this information on the prior motion (Patel v Exxon Corp., 11 AD3d 916 [2004]). Moreover, the unsubstantiated and speculative nature of the purported new information contained in Claimant’s affidavit would not change the prior determination. Claimant has failed to comply with the prerequisites of CPLR 2221 (e) and thus, his motion to renew must be denied.

A motion for leave to reargue 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 relevant facts or controlling principles of law (CPLR 2221 [d]). Its purpose is not to afford the unsuccessful party an opportunity to reargue or rehash the same questions previously decided (Fosdick v Town of Hempstead, 126 NY 651 [1891]). Nor does a motion for leave to reargue afford the unsuccessful party an opportunity to advance new arguments or take new positions not previously raised on the original motion (Simpson v Loehmann, 21 NY2d 990 [1968]; Foley v Roche, 68 AD2d 558 [1979]).

Other than attempting to introduce new facts through his affidavit which may not be considered on a motion to reargue (Phillips v Village of Oriskany, 57 AD2d 110 [1977]) and generally alleging that the Court misapprehended relevant facts or principles of law, Claimant merely reiterates the same arguments that were weighed and considered on the original motion and fails to convince the Court that any material facts or controlling principles of law were overlooked or misapprehended. Accordingly, Claimant’s motion for leave to reargue must be denied.

Finally, Claimant’s counsel forwarded to the Court by facsimile dated November 12, 2007, a copy of the decision Matter of New York State Dept. of Correctional Servs. v State Div. of Human Rights, 28 AD3d 906 (2006). While Claimant fails to state whether he is submitting this decision in support of his motion to renew or his motion to reargue, he does indicate that this decision seems “to mirror the case before the Court.” Nothing in this Third Department case, however, changes or alters the state of the law and, therefore, it is not relevant to Claimant’s motion to renew. Nor is it relevant to Claimant’s motion to reargue. This case was decided on April 13, 2006, before oral argument on the original motion for summary judgment herein, and was known to the Court and considered by the Court in rendering its initial decision. Moreover, this Court did not misapprehend the Third Department decision which held that the record therein supported the conclusion that the workplace was “permeated with discriminatory intimidation ...”(see Matter of New York State Dept. of Correctional Servs. v State Div. of Human Rights, supra at 906, citing Forrest v Jewish Guild for the Blind, 3 NY3d 295, 310 [2004]). A similar conclusion was not reached by this Court in deciding the summary judgment motion nor could it have been reached on the record before this Court. Accordingly, nothing in this recent Third Department decision changes the law or was misapprehended and in no way affects or alters this Court’s decision to deny Claimant’s motion to renew or Claimant’s motion to reargue.

Accordingly, it is hereby

ORDERED, that Claimant’s motion M-73850 for leave to renew or reargue is denied.

January 10, 2008
Buffalo, New York

Judge of the Court of Claims

[1]. This and other unreported Court of Claims decisions may be found on the Court’s website at
[2]. Defendant’s motion for summary judgment (M-72650) and Claimant’s cross-motion (CM-72769), which are the subject of Claimant’s present motion for leave to renew and reargue, were heard by the Court on April 25, 2007.