For the reasons set forth below, Mr. Hynes’ motion pursuant to CPLR
2221(a), for reargument of his prior motion for permission to serve and file a
claim late pursuant to Court of Claims Act §10(6) (Hynes v State of New
York, Claim No. None, Motion No. M-73450, filed August 2, 2007, McCarthy,
J.) is denied.
By his prior motion, Movant sought permission to file a claim late. The
proposed claim asserted four causes of action: (1) bailment; (2) improper search
of Movant’s cell; (3) violation of rights at a disciplinary hearing; and
(4) unlawful confinement. Regarding the bailment cause of action, the Court
found that this portion of Movant’s motion was unnecessary as the time to
serve and file such a claim pursuant to Court of Claims Act § 10(9) had not
yet expired. The Court granted the motion as to the causes of action alleging
an improper cell search and unlawful confinement and denied the motion as to the
cause of action alleging a violation of Movant’s rights at the
disciplinary hearing. Based upon a review of the record, it was unclear to the
Court what rights Movant believed were violated: State or Federal.
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 [2nd Dept 1988]; Foley v Roche,
68 AD2d 558, 567 [1st Dept 1979], appeal after remand 86 AD2d 887 [2nd
Dept 1982], 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,
652 ; William P. Pahl Equip. Corp. v Kassis, 182 AD2d 22, 27 [1st
Dept 1992], 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 Mr. Hynes’ motion contains no new proof, the Court considers the
motion to be one for reargument rather than renewal.
Upon a review of Movant’s motion papers, his affidavit in support of the
motion, Defendant’s counsel’s affirmation in opposition and the
Court’s decision upon the original motion, and upon due deliberation,
Movant’s motion for reargument is denied because the Court finds that it
properly applied the controlling principle of law and did not misapprehend the
The Court notes in passing that Claimant has failed to establish that the right
he asserts was violated was a State Constitutional right over which this Court
has jurisdiction. In addition, it appears to the Court that the issue he seeks
to reargue – that the hearing officer had no authority to consider the
charges such that the entire hearing should be invalidated – is already
included in the unlawful confinement cause of action, which the Court has
granted Claimant permission to late file.
Based upon the foregoing, Mr. Hynes’ motion is denied in its