New York State Court of Claims

New York State Court of Claims

AMAKER v. THE STATE OF NEW YORK, #2007-041-002, Claim No. 112521, Motion No. M-72691


Claimant’s motion to vacate/reargue Court’s decision and order dismissing the claim is 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:
Defendant’s attorney:
New York State Attorney GeneralBy: Paul F. Cagino, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
January 24, 2007

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant moves for “an order vacating the decision dismissing the claim.” The challenged decision and order, dated November 27, 2006, dismissed the claimant’s lost personal property claim based upon the claimant’s failure to exhaust his administrative remedies as required by Court of Claims Act § 10 (9).

Claimant has failed to set forth grounds sufficient to vacate the prior decision and order. CPLR 5015 (a) provides as follows:

“The court which rendered a judgment or order may relieve a party from it upon such terms as may be just, on motion of any interested person with such notice as the court may direct, upon the ground of:
  1. excusable default, if such motion is made within one year after service of a copy of the judgment or order with written notice of its entry upon the moving party, or, if the moving party has entered the judgment or order, within one year after such entry; or
  1. newly-discovered evidence which, if introduced at the trial, would probably have produced a different result and which could not have been discovered in time to move for a new trial under section 4404; or
  1. fraud, misrepresentation, or other misconduct of an adverse party; or
  1. lack of jurisdiction to render the judgment or order; or
  1. reversal, modification or vacatur of a prior judgment or order upon which it is based.”

Claimant fails to show that any of the grounds set forth above are applicable to the Court’s decision and order dismissing the claim. Accordingly, his motion to vacate the decision and order is denied.

It appears that claimant may have intended to seek an order pursuant to CPLR 2221 granting reargument or renewal of the defendant’s motion to dismiss which resulted in the Court’s decision and order dismissing the claim.

To the extent claimant’s application may be considered a motion to reargue or renew, it is denied. Initially, it is noted that a motion to reargue is “made on the papers submitted on the original motion” (Phillips v Village of Oriskany, 57 AD2d 110, 113). Claimant has not provided a copy of the decision and order challenged nor has he included “the papers submitted on the original motion” in his motion to reargue. Additionally, in determining a motion, the court may only consider documents and exhibits which have been served upon all parties (CPLR 2214 [c]).

Aside from these procedural infirmities, “[i]t is well settled that a motion for leave to reargue pursuant to CPLR 2221 is addressed to the sound discretion of the court and is properly granted upon a showing that the court overlooked or misapprehended the facts and/or the law or mistakenly arrived at its earlier decision” (Peak v Northway Travel Trailers Inc., 260 AD2d 840, 842 [3d Dept 1999]).

Claimant has not shown that the Court “overlooked or misapprehended” the relevant facts or law in its prior decision and order (see, CPLR 2221 [d] [2]).

Finally, claimant’s application also fails as a motion to renew “inasmuch as no new facts, unknown at the time of the original motion, were presented in support thereof” (In re Thornton & Naumes, LLP (Athari Law Office), 2007 NY Slip Op 00200 [3d Dept 2007]).

The claimant’s motion is denied.

January 24, 2007
Albany, New York

Judge of the Court of Claims

Papers Considered:

  1. Claimant’s Notice of Motion to Vacate Decision, filed December 18, 2006;
  2. Affidavit of Anthony D. Amaker, sworn to on December 13, 2006;
  3. Affirmation in opposition of Paul F. Cagino, dated December 9, 2006 and filed January 9, 2007, with annexed exhibit.
  4. Reply affidavit of Anthony D. Amaker, sworn to on January 13, 2007 and filed January 18, 2007.