New York State Court of Claims

New York State Court of Claims

TARBELL v. STATE OF NEW YORK, #2007-039-055, Claim No. 113008, Motion No. M-73680


Synopsis


Claimant’s motion for permission to reargue is denied. Claimant has not established that the Court overlooked or misapprehended the facts or law, or that it was mistaken when it denied claimant’s motion to amend the claim. Claimant did not show that his failure to comply with the verification requirements of Court of Claims Act § 11 was not a jurisdictional defect or that such a defect may, in fact, be cured by amendment. Nor did claimant provide the Court with copies of the original motion papers.

Case Information

UID:
2007-039-055
Claimant(s):
TARBELL, ROY
Claimant short name:
TARBELL
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
113008
Motion number(s):
M-73680
Cross-motion number(s):

Judge:
JAMES H. FERREIRA
Claimant’s attorney:
Roy Tarbell, pro se
Defendant’s attorney:
Hon. Andrew M. Cuomo
Attorney General of the State of New York
By: Michael T. KrenrichAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
January 11, 2008
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

By Decision and Order dated May 29, 2007 (Motion No. M-72917), the Court denied claimant’s motion for an order permitting him to amend the claim to include a missing verification on the ground that the defect is jurisdictional and cannot be cured by amendment. Claimant now moves the Court for permission to reargue his prior motion. In support thereof, claimant relies on CPLR 3022 to argue that defendant’s objection to the unverified claim was not made with due diligence and, therefore, the defense was waived. Claimant further argues that defendant’s objection to the unverified claim was not stated with sufficient particularity. In opposition to the motion, defendant avers that the Court should disregard claimant’s arguments because they were not raised during his initial motion and that claimant failed to demonstrate that the Court misapprehended any relevant facts or misapplied any controlling principle of law.

Claimant’s motion for permission to reargue is denied. It is well settled that “ ‘[m]otions for reargument are addressed to the sound discretion of the court which decided the prior motion and may be granted upon a showing that the court overlooked or misapprehended the facts or law or for some other reason mistakenly arrived at its earlier decision’ ” (Matter of New York Cent. Mut. Ins. Co. v Davalos, 39 AD3d 654, 655 [2007], quoting E.W. Howell Co., Inc. v S.A.F. La Sala Corp., 36 AD3d 653, 654 [2007]). Here, claimant has not established that the Court overlooked or misapprehended the facts or law, or that it was mistaken when it denied claimant’s motion to amend the claim. More specifically, claimant has not shown that his failure to comply with the verification requirements of Court of Claims Act § 11 is not a jurisdictional defect or that such a defect may, in fact, be cured by amendment. Moreover, contrary to claimant’s argument, the Court determined that defendant raised its objection to the lack of verification in a timely manner and with sufficient particularity, in accordance with Court of Claims Act § 11 [c]. Finally, the Court is unable to determine whether and to what extent claimant has set forth arguments different from those previously made since the Court was not provided with copies of the original motion papers.

Accordingly, it is hereby ordered that M-73680 is denied.


January 11, 2008
Albany, New York

HON. JAMES H. FERREIRA
Judge of the Court of Claims


Papers Considered
:
  1. Notice of Motion to Reargue dated June 21, 2007;
  2. Affidavit in Support of Motion to Reargue by Roy Tarbell sworn to on July 3, 2007;
  3. Affirmation in Opposition by Michael T. Krenrich, AAG dated July 23, 2007; and
  4. Reply to Affirmation in Opposition by Roy Tarbell dated July 25, 2007.