New York State Court of Claims

New York State Court of Claims

WHITE v. THE STATE OF NEW YORK, #2009-041-046, Claim No. 108717, Motion No. M-77399


Synopsis


Motion to reargue and/or renew with respect to decision and order which denied motion to vacate order dismissing claim for failure of claimant to appear for a conference is denied as untimely and because claimant showed no reasonable justification for his failure to present renewal facts on the prior motion.

Case Information

UID:
2009-041-046
Claimant(s):
GIOVANNI WHITE
Claimant short name:
WHITE
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
108717
Motion number(s):
M-77399
Cross-motion number(s):

Judge:
FRANK P. MILANO
Claimant’s attorney:
GIOVANNI WHITEPro Se
Defendant’s attorney:
HON. ANDREW M. CUOMO
New York State Attorney GeneralBy: Paul F. Cagino, Esq., Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
December 8, 2009
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision


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] [3]). 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 [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 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]).

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] [2] and [3]). 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.


December 8, 2009
Albany, New York

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


Papers Considered:

  1. Claimant’s Notice of Motion, filed November 4, 2009;
  2. Affidavit of Giovanni White, sworn October 30, 2009, and annexed exhibit;
  3. Affirmation of Paul F. Cagino, dated November 24, 2009, and annexed exhibits.