New York State Court of Claims

New York State Court of Claims
LERNER PAVLICK v. THE STATE OF NEW YORK, # 2010-010-033, Claim No. 111535, Motion No. M-77881

Synopsis

Motion to set aside Court's Decision and Judgment untimely and the papers submitted do not establish that the Court overlooked any significant facts in the record or misapplied the law.

Case information

UID: 2010-010-033
Claimant(s): LERNER PAVLICK REALTY
Claimant short name: LERNER PAVLICK
Footnote (claimant name) :
Defendant(s): THE STATE OF NEW YORK
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 111535
Motion number(s): M-77881
Cross-motion number(s):
Judge: Terry Jane Ruderman
Claimant's attorney: JACOBOWITZ & GUBITS, LLP
By: Michele L. Babcock, Esq.
Defendant's attorney: HON. ANDREW M. CUOMO
Attorney General for the State of New York
By: J. Gardner Ryan, Assistant Attorney General
Third-party defendant's attorney:
Signature date: May 13, 2010
City: White Plains
Comments:
Official citation:
Appellate results:
See also (multicaptioned case)

Decision

The following papers numbered 1-3 were read and considered by the Court on claimant's motion to set aside this Court's Decision and Judgment:

Notice of Motion, Attorney's Supporting Affirmation and Exhibits.........................1

Defendant's Affirmation in Opposition.....................................................................2

Reply Affirmation.....................................................................................................3

Claimant moves for an order setting aside so much of the Court's decision dated October 20, 2009 as found no consequential damages for rent loss due to the temporary easement. Although denominated a motion to reargue pursuant to CPLR 2221, claimant's motion essentially seeks to set aside a decision after a non-jury trial and is therefore governed by CPLR 4404(b) (see Brzozowy v ELRAC, Inc., 39 AD3d 451; Dawes v State of New York, 194 Misc 2d 617).

A motion pursuant to CPLR 4404(b) must be made within fifteen (15) days after the Court's decision (CPLR 4405). Although the Court has inherent authority to set aside its own decision, claimant has not proffered any excuse for the delay or otherwise demonstrated "an overriding and persuasive reason" to justify an exercise of this Court's discretion to consider the untimely application (Moore v State of New York, 45 Misc 2d 1060, 1062; cf. Barnes v Oceanus Nav. Corp., Ltd., 21 AD3d 975 [issue of public policy implicated]; Matter of Alison VV., 211 AD2d 988 [new evidence as to whether placement was in child's best interest]; Velez v State of New York, Ct Cl, Sept. 16, 2008, Scuccimarra, J., Claim No. 111537, Motion No. M-75309, UID 2008-030-559 [newly available proof of service]). Moreover, even if the application were to be considered on its merits, the papers submitted do not establish that the Court overlooked any significant facts in the record or misapplied the law.

Accordingly, it is ORDERED that Motion No. M-77881 is DENIED.

May 13, 2010

White Plains, New York

Terry Jane Ruderman

Judge of the Court of Claims