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