New York State Court of Claims

New York State Court of Claims

FOSTER v. THE STATE OF NEW YORK, #2008-010-037, Claim No. NONE, Motion No. M-75479


Synopsis


Motion for renewal and reargument denied, no valid excuse for not submitting additional facts and no relevant facts overlooked or mispprehended.

Case Information

UID:
2008-010-037
Claimant(s):
DANA FOSTER
Claimant short name:
FOSTER
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
NONE
Motion number(s):
M-75479
Cross-motion number(s):

Judge:
Terry Jane Ruderman
Claimant’s attorney:
DANA FOSTERPro Se
Defendant’s attorney:
HON. ANDREW M. CUOMO
Attorney General for the State of New YorkBy: Elyse Angelico, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
September 16, 2008
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers numbered 1-2 were read and considered by the Court on movant’s motion for renewal:
Notice of Motion, Movant’s Supporting Affidavit and Exhibits................................1

Defendant’s Affirmation in Opposition and Exhibits...............................................2

Movant seeks leave to renew this Court’s decision filed-stamped August 1, 2008 which denied movant’s application for leave to serve and file a late claim (Defendant’s Ex. B).

A motion for leave to renew “shall be based upon new facts not offered on the prior motion that would change the prior determination” (CPLR 2221 [e] [2]), and “shall contain reasonable justification for the failure to present such facts on the prior motion” (CPLR 2221 [e] [3]). “A motion for leave to renew is not a second chance freely given to parties who have not exercised due diligence in making their first factual presentation” (Elder v Elder, 21 AD3d 1055).

Here, movant’s purported excuse for the failure to present the supporting facts and exhibits on his late claim application is that “[h]e did not believe it was necessary *** for he was operating in a state of mind consisting of honesty” and “this court or the defendants could have found out if [movant’s] allegations were true or false by simply contacting the Department of Corrections” (Movant’s Affidavit, ¶ 16). This is not a valid excuse. “Renewal should be denied where the party fails to offer a valid excuse for not submitting the additional facts upon the original application” (see Mangine v Keller, 182 AD2d 476, 477). Accordingly, movant’s application for renewal is DENIED.

To the extent that movant seeks reargument, “[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 any controlling principle of law” (see Foley v Roche, 68 AD2d 558, 567). A reargument motion is not “a vehicle to permit the unsuccessful party to argue once again the very questions previously decided” (id.). Movant has not established that the Court overlooked or misapprehended the relevant facts or that the Court misapplied any controlling principle of law (see Mangine v Keller, supra; Foley v Roche, supra). Moreover, it is not within the province of the Court to contact the Department of Correctional Services to establish the truth of claimant’s allegations which may form a basis for a late claim application; nor is it defendant’s burden to establish the merit of movant’s late claim application. Accordingly, to the extent that movant seeks reargument, his application is DENIED.


September 16, 2008
White Plains, New York

HON. TERRY JANE RUDERMAN
Judge of the Court of Claims