Notice of Motion, Affirmation of Bonnie Gail Levy, Esq., Assistant Attorney
General, with Exhibits 1,2
Affidavit of Heather R. Rubinstein, Esq., Assistant Attorney General, with
Claimant has not submitted any responsive papers, nor has he contacted the
Court in any manner whatsoever regarding this motion or claim.
By a Decision and Order dated September 23, 2008, this Court denied
defendant’s motion to dismiss, which was based upon defendant’s
contention that claimant had never served his claim upon the Attorney General,
as required by Court of Claims Act § 11(a). This Court found, however,
that defendant had filed with the Clerk of the Court of Claims a Verified Answer
and First Set of Interrogatories on December 23, 2002, thereby indicating that a
claim had been served upon the Attorney General in some manner.
Pursuant to CPLR Rule 2221(d), a motion seeking leave to reargue “shall
be based upon matters of fact or law allegedly overlooked or misapprehended by
the court in determining the prior motion”. A motion for leave to renew a
prior motion, on the other hand, “shall be based upon new facts not
offered on the prior motion that would change the prior determination” and
“shall contain reasonable justification for the failure to present such
facts on the prior motion”, as set forth in CPLR Rule 2221(e). In this
particular motion, and as set forth herein, the Court finds that it did not
overlook or misapprehend any matters of fact or principles of law in determining
the prior motion, and therefore will treat the within motion as one seeking
leave to renew, rather than as one to reargue.
As set forth above, defendant originally sought dismissal of this claim due to
a failure of claimant to serve his claim upon the Attorney General. This motion
was denied, since the Court found evidence that a Verified Answer (and a First
Set of Interrogatories) had been filed with the Clerk of the Court. Although
these facts remain the same, the Court refers to the Affidavit submitted by
Heather R. Rubinstein, Esq., Assistant Attorney General (see Exhibit 3 to Items
1, 2) for the new facts which were not offered on the original motion, and her
explanation as to why these facts were not presented at that time.
As set forth in her Affidavit, Ms. Rubinstein had been assigned a file for a
claim from the claimant on November 14, 2002, but this file did not contain any
pleadings. Shortly thereafter, she received correspondence from the Clerk of
the Court of Claims indicating that a claim had been filed in October 2002, and
had been designated as Claim No. 106815 (the within claim). The following
month, on December 19, 2002, Ms. Rubinstein was assigned a second file regarding
claimant, and this file contained a claim, among other papers. The following
day, on December 20, 2002, Ms. Rubinstein served and filed a Verified Answer and
defendant’s First Set of Interrogatories to this claim. Although at this
time she had two “files” regarding claims, she was in possession of
only one claim from this claimant, and had also recently received notification
of a filed claim which had been designated Claim No. 106815. She therefore
affixed this claim number to her Verified Answer and Interrogatories, which were
then filed and served. Subsequent to her service and filing of the Verified
Answer, she then received a second letter from the Clerk of the Court indicating
that another claim from this claimant had been filed and designated as Claim No.
106914. In the opinion of this Court, it is significant that Ms. Rubinstein had
served and filed her Verified Answer prior to her receipt of this second
After reviewing these documents, and the two separate claims filed by claimant,
it is readily apparent that the Verified Answer and defendant’s First Set
of Interrogatories were served with an incorrect claim number affixed thereon.
These documents should have been designated as defendant’s response to
Claim No. 106914, rather than Claim No. 106815. Upon receipt of these
documents by the Clerk of the Court of Claims, however, they were filed under
Claim No. 106815, as marked thereon.
This Court had also been assigned Claim No. 106914. The mistake in the
designation of defendant’s Verified Answer and Interrogatories was never
discovered, however, since Claim No. 106914 was dismissed by this Court,
based upon claimant’s failure to appear at a scheduled trial on July 19,
These newly discovered facts, therefore, if they had been offered on the
original motion to dismiss, would change the prior determination of this Court.
Based on the facts set forth in Ms. Rubinstein’s Affidavit, the Court
also finds that defendant has presented a reasonable justification for its
failure to present such facts with its original motion to dismiss. Accordingly,
pursuant to CPLR Rule 2221(e), defendant’s motion seeking leave to renew
is hereby granted.
Furthermore, based upon the documents submitted in the original motion to
dismiss, the Court now accepts defendant’s contention, that claimant never
served his claim upon the Attorney General. The failure to do so constitutes a
jurisdictional defect, and this failure deprives the Court of jurisdiction to
hear the claim (Dreger v New York State Thruway Auth., 81 NY2d 721;
Bogel v State of New York, 175 AD2d 493).
The Court notes that claimant has not responded to this motion, nor did he
respond to the State’s original motion to dismiss.
Based on the foregoing, therefore, it is
ORDERED, that Motion No. M-75799 seeking permission by the defendant to renew
its prior motion to dismiss this claim is hereby GRANTED; and it is
ORDERED, that after reconsideration of its prior motion, Claim No. 106815 is