|Claimant short name:||WORD|
|Footnote (claimant name) :|
|Defendant(s):||STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||JUDITH A. HARD|
|Claimant's attorney:||Diane Word, Pro Se|
|Defendant's attorney:||Hon. Andrew M. Cuomo, NYS Attorney General
By: Joan Matalavage, Assistant Attorney General, Of Counsel
|Third-party defendant's attorney:|
|Signature date:||March 9, 2010|
|See also (multicaptioned case)|
Claimant's motion seeks leave to reargue and a writ of error coram nobis. As her application for writ of error coram nobis is misplaced, this Court is deeming claimant's application as one seeking leave to renew and reargue pursuant to CPLR 2221. Defendant opposes the motion on the basis that there is no verified affidavit to support the motion and further that there is no evidence that the Court overlooked or misapprehended any matters of fact or law. The Court agrees and denies claimant's motion in its entirety.
In the original Decision and Order, signed October 13, 2009, the Court dismissed the Claim and Amended Claim filed by claimant on the basis that they sought equitable relief (specially, the review of the discretionary decision of the New York State Parole Board with respect to its denial of claimant's release from incarceration), which the Court of Claims does not have jurisdiction to hear.
A motion for leave to renew must be based upon new facts not offered on the prior motion that would change the prior determination or shall demonstrate that there has been a change in the law that would change the prior determination (CPLR 2221 [e]; Tibbits v Verizon N.Y., Inc., 40 AD3d 1300, 1302-1303 [3d Dept 2007]). It shall contain reasonable justification for the failure to present such facts on the prior motion (Id.). Claimant has set forth no new facts or any change in the law that would have any bearing on the Court's prior determination. Claimant's motion for renewal is therefore denied.
A motion to reargue is addressed to the sound discretion of the Court and requires the moving party to demonstrate that the Court overlooked or misapprehended matters of fact or misapplied existing law to the facts presented (CPLR 2221 [d]; see Peak v Northway Travel Trailers, 260 AD2d 840 [3d Dept 1999]; Spa Realty Assoc. v Springs Assoc., 213 AD2d 781 [3d Dept 1995]; Loris v S & W Realty Corp., 16 AD3d 729, 730 [3d Dept 2005]). The Court finds that claimant has failed to show that it overlooked or misapprehended matters of fact or misapplied the law. In contrast to claimant's argument, the Court reiterates its finding in the prior determination that by seeking a review of the Parole Board's decision, claimant is seeking equitable relief, over which the Court of Claims does not have jurisdiction. Therefore, claimant's motion for reargument is denied.
Based on the foregoing, even if claimant had submitted a sworn affidavit in support of her motion for leave to renew and reargue, the Court would be constrained to deny the relief requested therein.
Accordingly, claimant's motion for leave to renew and reargue is denied it its entirety.
March 9, 2010
Albany, New York
JUDITH A. HARD
Judge of the Court of Claims
1. Notice of Motion to Reargue and For Writ of Error Coram Nobis, and Affirmation of Claimant in Support of Motion to Reargue and for Writ of Error Coram Nobis, dated October 29, 2009;
2. Affidavit in Opposition of Joan Matalavage, AAG, sworn to November 5, 2009.