New York State Court of Claims

New York State Court of Claims

PENDER v. THE STATE OF NEW YORK, ET AL., #2009-016-014, Claim No. 114525, Motion No. M-75901


Synopsis


Motion for “rehear[ing]/reconsideration” was denied.

Case Information

UID:
2009-016-014
Claimant(s):
JUVONDI R. PENDER
Claimant short name:
PENDER
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK, ET AL.
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
114525
Motion number(s):
M-75901
Cross-motion number(s):

Judge:
Alan C. Marin
Claimant’s attorney:
Juvondi R. Pender, Pro Se
Defendant’s attorney:
Andrew M. Cuomo, Attorney GeneralBy: Gwendolyn Hatcher, Esq., AAG
Third-party defendant’s attorney:

Signature date:
February 26, 2009
City:
New York
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Juvondi R. Pender moves for “rehear[ing]/reconsideration” in connection with the Court’s previous Decision and Order on motion nos. M-74624, M-74742 and CM-74943, in which claim no. 114525 was dismissed on the ground that it was not served either personally or by certified mail, return receipt requested as required by §11 of the Court of Claims Act, but rather by United States Postal Service Priority Mail. It will be assumed for the purposes of the instant motion that claimant seeks to reargue and/or renew pursuant to CPLR 2221.

For the first time, Mr. Pender now states that when he served his claim, he used both Priority Mail and “affidavit of service by third non party . . .” Assuming he means that his claim was in fact personally served, aside from the fact that he did not raise this in connection with the prior motions, he fails to submit an affidavit of personal service.

In view of the foregoing, to the extent that claimant moves to reargue, his motion is not properly before the Court as it is based on a matter of fact not offered on the prior motions. To the extent he moves to renew, he has failed to offer new facts that would change the prior determination. See CPLR 2221.

Accordingly, having reviewed the submissions[1], IT IS ORDERED that motion no. M-75901 be denied.


February 26, 2009
New York, New York

HON. ALAN C. MARIN
Judge of the Court of Claims




  1. [1]The following were reviewed: claimant’s notice of motion with affidavit in support and undesignated attachments; claimant’s submission entitled “Claimant Exhibit” filed on November 6, 2008; and defendant’s affirmation in opposition with exhibit A.