New York State Court of Claims

New York State Court of Claims

SHAKER RIDGE COUNTRY CLUB v. THE STATE OF NEW YORK, #2007-040-031, Claim No. 105215, Motion No. M-73252


Reargument motion denied.

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:
THE EFFRON LAW FIRMBy: Joshua J. Effron, Esq.
Defendant’s attorney:
Attorney General of the State of New YorkBy: Martin Rowley, Esq.
Third-party defendant’s attorney:

Signature date:
June 12, 2007

Official citation:

Appellate results:

See also (multicaptioned case)


For the reasons set forth below, the State’s motion pursuant to CPLR 2221(a), for reargument of its prior motion for partial summary judgment (Shaker Ridge Country Club, Inc. v State of New York, Claim No. 105215, Motion No. M-72658, filed April 2, 2007, McCarthy, J.) is denied.

The Claim, which was filed with the Clerk of the Court on November 16, 2001 and served upon the Attorney General on the same date, asserts that the State appropriated a portion of Claimant’s real property for highway purposes pursuant to Highway Law § 30 and the Eminent Domain Procedure Law.

By its prior motion, Defendant sought partial summary judgment declaring that, as a matter of law, the only access to the subject property on June 4, 2001 was over a 32-foot-wide easement road extending 1,370+ feet from the then-existing Albany Shaker Road to Claimant’s property line. The Court denied Defendant’s request. The Court found that Defendant failed to make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact. The Court further stated that based upon the record, the Court was unable to determine the length of the access road to Claimant’s property on the vesting date.

The Court stated, “[t]here is no written notation on the March 1998 survey (Ex. 4 attached to motion) that states the access road extends 1,370+ feet from Albany Shaker Road to the Claimant’s property line. In addition, in Claimant’s Answers to the First Set of Interrogatories (Ex. 5 attached to motion), Claimant asserts in response to Interrogatory “3”, ‘[F]rom the intersection with Albany Shaker Road to the building improvement complex, the access is approximately 32+ feet wide and 2800+ feet in length’.” (Shaker Ridge Country Club, Inc. v State of New York, supra, at page 4). The Court concluded that based upon the record it was unable to determine the issue of the length of access available to the subject property prior to the taking.

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 the controlling principle of law (Schneider v Solowey, 141 AD2d 813; Foley v Roche, 68 AD2d 558, 567, appeal after remand, 86 AD2d 887, appeal denied, 56 NY2d 507). 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; William P. Pahl Equip. Corp. v Kassis, 182 AD2d 22, lv dismissed in part, lv denied in part, 80 NY2d 1005, rearg denied, 81 NY2d 782). If such a motion contains new proof, it is a “renewal” motion, rather than a “reargument” motion, and should be treated as such (Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C2221:7, at 182). An application for leave to renew must be based upon additional material facts which existed at the time the prior motion was made but which were not then known to the party seeking leave to renew and which, therefore, were not made known to the Court (Foley v Roche, supra at 568).

As Defendant’s motion contains no new proof, the Court considers the motion to be one for reargument rather than renewal.

Upon a review of Defendant’s motion papers, counsel’s affirmation in support of the motion, Claimant’s counsel’s affirmation in opposition and the Court’s decision upon the original motion, and upon due deliberation, Defendant’s motion for reargument is denied as the Court finds that it properly applied the controlling principle of law and did not misapprehend the relevant facts.

Based upon the foregoing, therefore, Defendant’s motion is denied in its entirety.

June 12, 2007
Albany, New York

Judge of the Court of Claims

The following papers were read and considered by the Court on Defendant’s motion for reargument:

Papers Numbered

Notice of Motion, Affirmation in Support
and Exhibit Attached 1

Affirmation in Opposition 2

Filed Papers: Claim