Claimant's motion for reargument was denied as this Court lacks jurisdiction to review determinations of the New York State Department of Taxation and Finance.
|Claimant(s):||YASHUA AMEN SHEKHEM EL BEY|
|Claimant short name:||EL BEY|
|Footnote (claimant name) :|
|Defendant(s):||STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||FRANCIS T. COLLINS|
|Claimant's attorney:||Yashua Amen Shekhem El Bey, Pro Se|
|Defendant's attorney:||Honorable Letitia James, Attorney General
By: Glenn C. King, Esq., Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||March 4, 2021|
|See also (multicaptioned case)|
Claimant moves to vacate a Decision and Order dated November 19, 2020 dismissing his claim.
Claimant, proceeding pro se, seeks damages for "ongoing theft and seizure upon Claimant's property" (Amended Claim, ¶ 1.2) by the New York State Department of Taxation and Finance ("NYSDTF"), which allegedly served an Income Execution Warrant on his employer without due process of law in July 2004. Claimant contends in support of the instant motion that although he seeks equitable relief to vacate the income execution warrant, his primary claim is for monetary relief arising from his constitutional tort causes of action.
Although the claimant denominates his motion as one to vacate, it is properly considered as one to reargue a prior motion pursuant to CPLR 2221 (d). 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 (see CPLR, Rule 2221 [d] ; Matter of Ellsworth v Town of Malta, 16 AD3d 948 [3d Dept 2005]; Peak v Northway Travel Trailers, 260 AD2d 840 [3d Dept 1999]; Spa Realty Assoc. v Springs Assoc., 213 AD2d 781 [3d Dept 1995]). Such a motion does not serve as a vehicle to permit the unsuccessful party to argue once again the very questions previously decided (Foley v Roche, 68 AD2d 558, 567 [1st Dept 1979], appeal denied 56 NY2d 507 ).
Claimant has failed to demonstrate that the Court overlooked matters of fact or misapplied existing law to the facts presented. Rather, he raises the very same arguments the Court previously rejected. Inasmuch as this Court has neither jurisdiction to review determinations of the NYSDTF nor the equitable power necessary to vacate an income execution warrant, dismissal of the claim is required. Although claimant characterizes the claim as one sounding in tort, any monetary relief would be incidental to the primary relief sought since review and vacatur of an administrative determination would be required (see e.g. Matter of Salahuddin v Connell, 53 AD3d 898 [3d Dept 2008]; City of New York v State of New York, 46 AD3d 1168, 1169 [3d Dept 2007], lv denied 10 NY3d 705 ; Madura v State of New York, 12 AD3d 759, 760 [3d Dept 2004], lv denied 4 NY3d 704 ).
Accordingly, claimant's motion is denied.
March 4, 2021
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims