New York State Court of Claims

New York State Court of Claims

KOEHL v. THE STATE OF NEW YORK, #2008-041-045, Claim No. 114946, Motion No. M-75603


Synopsis


Claimant’s motion for reargument is denied where movant fails to file or serve motion papers underlying the prior decision and order as to which reargument is requested.


Case Information

UID:
2008-041-045
Claimant(s):
EDWARD KOEHL
Claimant short name:
KOEHL
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
114946
Motion number(s):
M-75603
Cross-motion number(s):

Judge:
FRANK P. MILANO
Claimant’s attorney:
EDWARD KOEHLPro Se
Defendant’s attorney:
HON. ANDREW M. CUOMO
New York State Attorney GeneralBy: Michael C. Rizzo, Esq., Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
November 12, 2008
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision


Claimant moves for reargument of the Court’s Decision and Order, filed September 22, 2008, which directed defendant to disclose any further documents in its possession which are responsive to claimant’s request for documents and denied claimant’s request for sanctions. A motion to reargue is “made on the papers submitted on the original motion” (Phillips v Village of Oriskany, 57 AD2d 110, 113 [4th Dept 1977]). Claimant has not provided a copy of the challenged decision and order 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]). Unless the Attorney General has been served with a set of motion papers different than those filed with the Clerk of the Court of Claims, claimant has failed to serve the papers submitted on the original motion on the Attorney General. Therefore, the papers submitted on the original motion cannot be considered even if the Court were to attempt to retrieve them from the Clerk of the Court of Claims, which it has no obligation to do (Sheedy v Pataki, 236 AD2d 92, 97-98 [3d Dept 1997], lv denied 91 NY2d 805 [1998]).

Aside from these fatal 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, in making his application to reargue, 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]).

The claimant’s motion to reargue is denied. Claimant’s request that the Court recuse itself is also denied.

Claimant’s most recent request, in his reply papers, that the Court order defendant to bear the transportation and/or “video conferencing” costs of proposed deponents is not properly before the Court, and is not being addressed, as it “was improperly raised for the first time in [his] reply [affirmation]” Willette v Willette, 53 AD3d 753, 755 [3d Dept 2008]).


November 12, 2008
Albany, New York

HON. FRANK P. MILANO
Judge of the Court of Claims


Papers Considered:

  1. Claimant’s Unsworn “Affidavit,” dated September 25, 2008, and annexed exhibits;
  2. Affidavit of Michael C. Rizzo, sworn to October 21, 2008;
  3. Reply Affirmation of Edward Koehl, filed November 3, 2008.