For the reasons set forth below, the State’s motion pursuant to CPLR
2221(a), for reargument of this Court’s prior Decision and Order
(Tinkham v State of New York, Claim No. 115166, Motion No. M-75264, filed
October 16, 2008, McCarthy, J.) is denied.
The instant Claim was filed with the Clerk of the Court on April 24, 2008. The
State did not file a verified answer to the Claim. The Court issued an Order to
Show Cause returnable September 24, 2008 noting that Claimant may have failed
to comply with the service requirements of § 11 of the Court of Claims Act.
Claimant was ordered to submit a written statement evidencing proper service of
In response, Claimant provided a copy of a U.S. Postal Service Certified Mail
Receipt showing that a document was mailed to the Attorney General on September
22, 2008 and a statement from Mr. Tinkham that the document served was the
Claim. As Claimant provided proof of service of the Claim, the Order to Show
Cause was vacated.
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 the controlling principle of law
(Schneider v Solowey, 141 AD2d 813 [2d Dept 1988]; Foley v Roche,
68 AD2d 558, 568-569 [1st Dept 1979], appeal after remand 86 AD2d 887 [2d
Dept 1982], appeal denied 56 NY2d 507 ). Its purpose is not to
serve as a vehicle to permit an unsuccessful party to argue once again the very
questions previously decided (Fosdick v Town of Hempstead, 126 NY 651,
652 ; William P. Pahl Equip. Corp. v Kassis, 182 AD2d 22, 27 [1st
Dept 1992]; lv dismissed in part, lv denied in part 80 NY2d 1005
, rearg denied 81 NY2d 782 ). If such a motion contains new
proof, it is a “renewal” motion, rather than a
“reargument” motion, and should be treated as such (Siegel, Practice
Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C2221:7, at 182).
An application for leave to renew must be based upon additional material facts
which existed at the time the prior motion was made (or, in this case, the Order
to Show Cause was returnable) but which were not then known to the party seeking
leave to renew and which, therefore, were not made known to the Court (Matter
of Beiny v Wynyard, 132 AD2d 190, 209-210 [1st Dept 1987], lv
dismissed 71 NY2d 994 ).
Here, the Court finds that the State’s motion contains new proof.
Defendant does not assert that the Court misapplied the controlling principle of
law or misunderstood the facts before the Court on the return date of the Order
to Show Cause. Therefore, the motion to reargue is denied.
If the Court were to consider the motion to be one for renewal, the Court would
also deny that application. “Renewal is granted sparingly”
(Matter of Beiny v Wynyard, 132 AD2d 190, supra at 210).
“On a motion to renew under CPLR 2221, a party must show new facts to
support the motion, as well as justifiable excuse for not initially placing
such facts before the court” (Matter of Barnes v State of New
York, 159 AD2d 753, 753 [3d Dept 1990], lv dismissed 76 NY2d 935
, quoting Lansing Research Corp. v Sybron Corp., 142 AD2d 816, 819
[3d Dept 1988] [emphasis in original]; see Matter of Shapiro v State of New
York, 259 AD2d 753 [2d Dept 1999]; McRory v Craft Architectural Metals
Corp., 112 AD2d 358, 359 [2d Dept 1985]). Here, no excuse is proffered for
the failure to include this information in the papers in response to the Order
to Show Cause. It appears that such information was available to Defendant when
it received Claimant’s response to the Order to Show Cause in advance of
the return date, yet Defendant did not seek to amend or supplement its earlier
response to the Order to Show Cause, or otherwise apprise the Court of the
existence of that information. Therefore, the motion cannot be considered a
motion to renew as the information both existed and was known to Defendant at
the time the Order to Show Cause was returnable.