|Claimant short name:||WORD|
|Footnote (claimant name) :|
|Defendant(s):||THE 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:||September 9, 2010|
|See also (multicaptioned case)|
Claimant's motion seeks leave to renew a prior Decision and Order of this Court. As best the Court can tell, claimant refers to the Decision and Order of this Court which was filed on October 27, 2009. Defendant opposes the motion on the basis that it is more properly characterized as a motion to reargue because claimant is again arguing that her parole status should be changed, and that as a motion to reargue, it is untimely. Defendant further argues that even if the motion is one to renew, it must be denied because no new facts have been offered and no change has taken place in the law. The Court agrees and denies claimant's motion.
In the original Decision and Order, filed October 27, 2009, the Court dismissed the Claim and Amended Claim filed by claimant on the basis that they sought equitable relief (specifically, 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.). The Court cannot ascertain any new facts or any change in the law from claimant's motion papers that would have any bearing on the Court's prior determination.
In the event claimant's motion is one seeking to reargue, it must also be denied. 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]). In the present case, claimant was served with the Decision and Order and written notice of its entry by letter dated November 3, 2009. As the subject motion is dated May 25, 2010 and was filed on June 1, 2010, it is untimely.
Accordingly, claimant's motion is denied.
September 9, 2010
Albany, New York
JUDITH A. HARD
Judge of the Court of Claims
1.Notice of Motion to Renew and Affidavit in Support of Motion to Renew, sworn to by claimant on May 25, 2010;
2. Affidavit in Opposition of Joan Matalavage, AAG, sworn to June 2, 2010, with Exhibit;
3. Reply Affirmation of Claimant, dated June 7, 2010.
Papers Filed: Claim, filed December 8, 2008; Order, filed December 23, 2008; Amended Claim, filed February 9, 2009; Decision and Order, filed October 27, 2009; and two Decisions and Orders, filed March 19, 2010.