Claimant's motion for reconsideration of decision and order dismissing unverified claim for lack of jurisdiction is denied.
|Claimant short name:||FLOWERS|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||FRANK P. MILANO|
|Claimant's attorney:||ANTHONY FLOWERS
|Defendant's attorney:||HON. ERIC T. SCHNEIDERMAN
New York State Attorney General
By: Glenn C. King, Esq.
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||January 22, 2018|
|See also (multicaptioned case)|
Claimant moves for "reconsideration" of the Court's Decision and Order, filed September 21, 2017, which dismissed the claim as jurisdictionally defective because the claim was unverified. Defendant opposes the claimant's motion.
The Court will treat the claimant's motion as seeking reargument or renewal pursuant to CPLR 2221.
A motion to reargue is "made on the papers submitted on the original motion" (Phillips v Village of Oriskany, 57 AD2d 110, 113 [4th Dept 1977]). Claimant has not provided a copy of the prior Decision and Order nor "the papers submitted on the original motion" in his motion to reargue.
Additionally, in determining a motion, the court may only consider documents and exhibits which have been served upon all parties (CPLR 2214 [c]). Unless the Attorney General has been served with a set of motion papers different than those filed with the Clerk of the Court of Claims, claimant has failed to serve the papers submitted on the original motion on the Attorney General. Therefore, the papers submitted on the original motion cannot be considered even if the Court were to attempt to retrieve those papers from the Clerk of the Court of Claims, which it has no obligation to do (Sheedy v Pataki, 236 AD2d 92, 97-98 [3d Dept 1997], lv denied 91 NY2d 805 ).
Beyond these fatal procedural infirmities, "[i]t is well settled that a motion for leave to reargue pursuant to CPLR 2221 is addressed to the sound discretion of the court and is properly granted upon a showing that the court overlooked or misapprehended the facts and/or the law or mistakenly arrived at its earlier decision" (Peak v Northway Travel Trailers Inc., 260 AD2d 840, 842 [3d Dept 1999]).
Claimant has not shown that the Court "overlooked or misapprehended" the relevant facts or law in its prior decision and order (see CPLR 2221 [d] ).
A motion to renew "shall be based upon new facts not offered on the prior motion that would change the prior determination . . . [and] shall contain reasonable justification for the failure to present such facts on the prior motion" (CPLR 2221 [e]  and ). Further, "[r]enewal is not a means by which to remedy the failure to present evidence which, with due diligence, could have been produced at the time of the original motion" (Kahn v Levy, 52 AD3d 928, 930 [3d Dept 2008]).
Claimant has offered no new facts in admissible form which would change the prior determination and, assuming such admissible facts had been offered, has provided no "reasonable justification for the failure to present such facts on the prior motion" (CPLR 2221 [e] ).
For all of the foregoing reasons, the claimant's motion is denied.
January 22, 2018
Albany, New York
FRANK P. MILANO
Judge of the Court of Claims
1. Claimant's "Reconsideration" Motion, filed October 27, 2017;
2. Affidavit of Anthony Flowers, sworn to October 20, 2017, and attached exhibits;
3. Affirmation of Glenn C. King, dated December 8, 2017.