New York State Court of Claims

New York State Court of Claims

ARIOLA v. STATE OF NEW YORK, #2008-018-630, Claim No. 114249, Motion No. M-74881


Synopsis


The Court cannot consider new matters of fact not presented by the prior motion. Claimant’s request for reargument is denied as he has not presented any facts or law overlooked or misapprehended by the Court in the prior motion.

Case Information

UID:
2008-018-630
Claimant(s):
CHRISTOPHER D. ARIOLA
Claimant short name:
ARIOLA
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
114249
Motion number(s):
M-74881
Cross-motion number(s):

Judge:
DIANE L. FITZPATRICK
Claimant’s attorney:
Christopher D. AriolaPro Se
Defendant’s attorney:
ANDREW M. CUOMO
Attorney General of the State of New York
By: Heather R. Rubinstein, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
October 3, 2008
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant brings a motion for reargument upon the grounds that Court of Claims Act


§ 11(a) is unconstitutionally vague because, according to claimant, it states that either the notice of intention or the claim must be served by certified mail. He states that he believed he was in compliance when he served his notice of intention by certified mail, return receipt requested, but not the claim. Claimant also argues that the Court has jurisdiction over the notice of intention which was properly served by certified mail, return receipt requested.

CPLR 2221(d) provides that a motion for leave to reargue must be based upon matters of fact or law allegedly overlooked or misapprehended by the Court in determining the prior motion. The Court cannot consider new matters of fact not presented by the prior motion. Claimant’s request for reargument is denied as he has not presented any facts or law overlooked or misapprehended by the Court in the prior motion.

Court of Claims Act § 11(a)(i) provides that: “ The claim shall be filed with the clerk of the court; and, except in the case of a claim for the appropriation by the state of lands, a copy shall be served upon the attorney general within the times hereinbefore provided for filing with the clerk of the court either personally or by certified mail, return receipt requested....” [Emphasis supplied]. There is nothing vague about the statute, it clearly and unequivocally states how the claim must be served upon the Attorney General. Claimant undisputedly did not properly serve the claim pursuant to the statute; therefore, it was dismissed by the prior Decision and Order of this Court.

Although the Court may, upon application pursuant to Court of Claims Act § 10(8)(a), permit a timely and properly served notice of intention to be treated as the claim, claimant has made no such application. Even if the Court were to consider claimant’s second argument in this motion such an application, claimant has failed to attach a copy of the notice of intention. Without a copy of the notice of intention, the Court cannot determine whether the notice of intention claimant served upon the Attorney General meets the requirements of Court of Claims Act § 10(8)(a).

Accordingly, claimant’s motion is DENIED.


October 3, 2008
Syracuse, New York

HON. DIANE L. FITZPATRICK
Judge of the Court of Claims


The Court has considered the following documents in deciding this motion:

1. Notice of Motion.


2. Affidavit of Christopher D. Ariola, in support, sworn to April 16, 2008.

3. Affirmation of Heather R. Rubinstein, Esquire, Assistant Attorney

General, in opposition.