Claimant moves to reargue and/or renew with respect to an order, filed on
December 11, 2007, dismissing the claim for claimant’s failure to appear
for a telephone conference. Claimant’s prior motion to restore the claim
to the calendar was denied by the Court’s Decision and Order filed on
August 6, 2008 and served, with notice of entry, on claimant on August 25,
2008. A motion to reargue “shall be made within thirty days after service
of a copy of the order determining the prior motion and written notice of its
entry” (CPLR 2221 [d] ). The motion to reargue, made on October 31,
2009, is untimely.
Further, 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 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 ).
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 has not shown that the Court “overlooked or
misapprehended” the relevant facts or law in its prior decision and order
(see CPLR 2221 [d] ).
A motion to renew “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” (CPLR 2221 [e]  and ). Further, “[r]enewal is not a
means by which to remedy the failure to present evidence which, with due
diligence, could have been produced at the time of the original motion”
(Kahn v Levy, 52 AD3d 928, 930 [3d Dept 2008]).
Claimant offers several new reasons as to why he failed to appear for the
conference but has provided no reasonable justification for the failure to
present such facts on the prior motion.
The claimant’s motion to reargue and/or renew with respect to the order
dismissing the claim based upon claimant’s default is denied.