Motion for renewal of order dismissing claim for improper service was denied.
|Claimant short name:||DORSEY|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||FRANCIS T. COLLINS|
|Claimant's attorney:||Ronald Dorsey, Pro Se|
|Defendant's attorney:||No Appearance|
|Third-party defendant's attorney:|
|Signature date:||April 1, 2010|
|See also (multicaptioned case)|
Claimant moves pursuant to CPLR 2221 for renewal of this Court's prior Order dismissing the claim due to improper service. Claimant also seeks leave pursuant to CPLR 3025 to amend his claim to add the Hon. Jeffrey Atlas, Supreme Court, New York County, as a defendant.(1)
The law is well settled that " 'a motion to renew must be based upon newly discovered evidence which existed at the time the prior motion was made, but was unknown to the party seeking renewal, along with a justifiable excuse as to why the new information was not previously submitted' " (Tibbits v Verizon N.Y., Inc., 40 AD3d 1300, 1302-1303 , quoting Wahl v Grippen, 305 AD2d 707, 707 ; see also CPLR 2221[e]). "Because renewal is not a second chance freely given to parties who have not exercised due diligence in making their first factual presentation, a party seeking that relief must provide a reasonable justification for the earlier failure to present such facts" (Cippitelli v County of Schenectady, 307 AD2d 658, 658 [internal quotation marks and citation omitted]).
The instant claim was dismissed for improper service, the defendant having previously established that the claim was improperly served upon the Attorney General by ordinary mail (see Court of Claims Act § 11 [a] [i]). Claimant opposed the prior motion to dismiss the claim on the ground that he was unable to afford service by certified mail. Claimant now indicates that subsequent to the filing of the defendant's motion he served the claim by certified mail, return receipt requested. Service of the claim subsequent to the filing of the motion for improper service forms no basis for renewal as it does not constitute evidence which was in existence but unknown to the claimant at the time the original motion was made. To the extent claimant asserts that he made a good faith attempt to serve the claim properly in the first instance, nothing short of strict compliance with the statutory requirements conditioning suit is sufficient (Dreger v New York State Thruway Auth., 81 NY2d 721, 724 ). As the claimant failed to establish a basis for renewal, his motion to amend the claim dismissed on the original motion must be denied as well. (2)
Accordingly, claimant's motion is denied.
April 1, 2010
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims
The Court considered the following papers:
1. While the claimant's affidavit in support of his motion indicates that the motion was "served Ex Parte upon the Hon. Francis T. Collins, Judge of the Court of Claims . . .", his affidavit of service reflects that the motion was served on the Office of the Attorney General. Accordingly, the motion will be decided on the merits.
2.The motion to amend would have to be denied in any event because the Court of Claims lacks jurisdiction to hear claims against State employees in their individual capacity (Court of Claims Act § 9 ; see generally Easley v New York State Thruway Auth. 1 NY2d 374 ; Morell v Balasubramanian, 70 NY2d 297 ).