|Claimant(s):||CROW AND SUTTON ASSOCIATES, INC., RUTH SUTTON And D. JAMES SUTTON|
|Claimant short name:||SUTTON|
|Footnote (claimant name) :|
|Defendant(s):||STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||JUDITH A. HARD|
|Claimant's attorney:||D. James Sutton, Pro Se|
|Defendant's attorney:||Hon. Andrew M. Cuomo, NYS Attorney General
By: Glenn C. King, Assistant Attorney General, Of Counsel
|Third-party defendant's attorney:|
|Signature date:||September 9, 2010|
|See also (multicaptioned case)|
Claimant, D. James Sutton, appearing pro se, moves this Court for leave to reargue the Court's Decision and Order, dated April 5, 2010. Defendant takes no position on the motion. For the reasons set forth below, the Court denies claimant's motion.
The underlying claim alleges that the officers, agents or employees of the New York State Insurance Department omitted or failed to execute the duties bestowed upon them by failing to investigate the unlawful acquisition of the books of business of Reliance Insurance Company (Reliance) by Travelers Casualty and Surety Company (Travelers). In said claim, claimants sought monetary damages in the sum of $294,663.00 plus interest from August 2004, which is the amount of a judgment awarded to Travelers against claimants; or, in the alternative, an order enjoining Travelers from enforcing said judgment against them. Claimants sought to amend said claim to add a cause of action for fraud, alleging that defendant intentionally erred in performing its duties and conspired to defraud claimants. Claimants also sought to increase the monetary relief sought to $15,058,384.00, and to obtain an order enjoining Travelers from claiming that it is the legal owner of Sutton bonds or indemnity contracts in any legal proceeding. Defendant cross moved to dismiss the claim on the basis of res judicata/collateral estoppel and lack of jurisdiction. The Court denied claimants' motion, granted defendant's cross motion and dismissed Claim No. 115853, on the basis that the central issue to the claim and proposed amendment was the relationship between Reliance and Travelers, an issue which had previously been litigated in two other forums, and also, on the basis that the true nature of the claim is one of equitable relief over which this Court does not have jurisdiction. Claimant, D. James Sutton, now seeks to reargue this Court's decision.
In support of his motion, claimant alleges that because this claim is against the State Insurance Department, rather than Travelers Insurance, res judicata is not applicable. Claimant argues that the Court has jurisdiction over the actions of the Insurance Department and further, that the Court should not have addressed defendant's cross motion to dismiss because it was not filed three days prior to the return date of the original motion.
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]).
Claimant has failed to establish that the Court overlooked or misapprehended matters of fact or misapplied the law. As set forth in the Court's Decision and Order, the State of New York has adopted a transactional analysis approach in deciding res judicata. Specifically, once a claim is brought to final conclusion, all other claims arising out of that transaction or series of transactions are barred, even if based upon different theories or if seeking a different remedy (see O'Brien v City of Syracuse, 54 NY2d 353, 357 ). In the present case, the issue which is central to the claim is the relationship between Reliance and Travelers, an issue which was previously litigated in two other forums. Moreover, to the extent claimant sought to add an issue that was not previously litigated, the Court finds that he is still seeking to challenge an action of an administrative agency, over which this Court lacks subject matter jurisdiction (see Hoffman v State of New York, 42 AD3d 641 [3d Dept 2007]). Claimant offers nothing in his motion to establish otherwise. Nor has claimant offered anything to establish why the Court should not have exercised its discretion to hear defendant's cross motion to dismiss, particularly where, as here, claimant had been given additional time to respond.
Based upon the foregoing, claimant's motion seeking leave to reargue is denied.
September 9, 2010
Albany, New York
JUDITH A. HARD
Judge of the Court of Claims
1. Notice of Motion, dated June 8, 2010, and Affidavit of D. James Sutton, sworn to June 8, 2010;
2. Letter of Glenn C. King, AAG, dated July 2, 2010.
Papers Filed: Claim, filed September 18, 2008; Verified Answer, filed October 29, 2008; Decision and Order (Hard, J.), filed May 19, 2009; Order (Hard, J.), filed October 22, 2009; and Decision and Order (Hard, J.), filed on April 23, 2010.