Claimant's motions to reargue and to amend the claim denied. Claimant's motion to reargue Court's prior decision dismissing the claim on subject matter jurisdiction grounds failed to persuade the Court that it overlooked or misapprehended any matter of law or fact. Claimant's motion to amend dismissed claim denied as moot.
|Claimant short name:||McGINNIS|
|Footnote (claimant name) :|
|Defendant(s):||STATE OF NEW YORK NYS DOL|
|Footnote (defendant name) :|
|Motion number(s):||M-96417, M-96421|
|Judge:||W. BROOKS DeBOW|
|Claimant's attorney:||PAUL McGINNIS, Pro se|
|Defendant's attorney:||LETITIA JAMES, Attorney General
of the State of New York
By: Anthony Rotondi, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||March 22, 2021|
|See also (multicaptioned case)|
Claimant pro se filed this claim alleging that the New York State Department of Labor (DOL) has fraudulently denied his claims for unemployment benefits. By Decision and Order dated January 12, 2021, this Court granted defendant's motion to dismiss the claim on the ground that the Court lacked subject matter jurisdiction over the claim (see McGinnis v State of New York NYS DOL, UID No. 2021-038-505 [Ct Cl, DeBow, J., Jan. 12, 2021]). In two separate motions, claimant seeks to amend the claim (Motion No. M-96417) and to stay and reargue the Court's January 12, 2021 Decision and Order dismissing the claim (Motion No. M-96421). Defendant opposes the motions.
The Court will address claimant's motion to stay and to reargue the Court's January 12, 2021 Decision and Order dismissing the claim, inasmuch as if it is denied it will be determinative of claimant's motion to amend the claim. Although claimant's motion is styled as a motion for a "stay the [Court's] decision to dismiss" (see Notice of Motions for Stay to Reargue, dated Feb. 1, 2021), a motion for a stay pursuant to CPLR 2201 is only available to actions that are "pending," and this claim was dismissed and is no longer pending. Thus, the Court interprets this motion solely as one for leave to reargue, which seeks to persuade the court that its ruling should be reconsidered because the court ruled incorrectly upon the submissions that were before it, and which is addressed to the discretion of the Court (see Peak v Northway Travel Trailers, 260 AD2d 840, 842 [3d Dept 1999]). The motion for leave to reargue "shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion, but shall not include any matters of fact not offered on the prior motion" (CPLR 2221 [d] ), and it "is not designed to afford an unsuccessful party successive opportunities to reargue issues previously decided or to present arguments different from those originally asserted" (Matter of Mayer v National Arts Club, 192 AD2d 863, 865 [3d Dept 1993]; see also Rubinstein v Goldman, 225 AD2d 328 [1st Dept 1996], lv denied 88 NY2d 815 ; William P. Pahl Equip. Corp. v Kassis, 182 AD2d 22 [1st Dept 1992], lv denied, lv dismissed 80 NY2d 1005 ; Foley v Roche, 68 AD2d 558, 568 [1st Dept 1979]).
In its January 12, 2021 Decision and Order, the Court concluded that it lacked jurisdiction over the claim because the Appellate Division, Third Department has the sole and exclusive jurisdiction over claims challenging a denial of unemployment benefits (see McGinnis v State of New York NYS DOL, UID No. 2021-038-505). In its decision, the Court declined to consider defendant's alternative argument that the claim failed to state a cause of action sounding in fraud because the Court dismissed the claim for lack of jurisdiction (see id.).
In this motion seeking reargument, claimant argues that he disagreed with defendant's assertion that the claim failed to state a cause of action for fraud, although he conceded that the items of damages in the claim were "lacking" and that he attempted to file a motion to amend to cure that deficiency, but it was not accepted for filing until December 2020, which he resubmitted (McGinnis Affirmation, ¶ 1).(1) Further, claimant argues there is a "potential conflict" between the jurisdiction of this Court and the Appellate Division (id., ¶ 2). Claimant argues that defendant's arguments concerning the exhaustion of the appeals process within DOL was irrelevant "because any time available to appeal the determination by [DOL] has lapsed" and that there was no defense made to his fraud allegations (id., ¶ 3). Lastly, claimant argues that an issue that may have been "overlooked" was that his time to make an appeal of the denial of his unemployment benefits has lapsed and that he now has no other remedy (see id.). Defendant argues that the Court "did not overlook or misapprehend matters of fact or law when making its prior determination" and that the Court properly determined that the it lacked jurisdiction over the claim inasmuch as claimant's "sole and exclusive remedy in this matter is an appeal to the Appellate Division Third Department" (Rotondi Affirmation, ¶ 5).
In this motion for reargument, claimant merely reargues matters of fact and law that were raised in the motion to dismiss and raises arguments that should have been previously brought in opposition to the motion to dismiss. Moreover, claimant's arguments concerning the adequacy of the cause of action sounding in fraud are immaterial to the Court's prior Decision and Order as the Court declined to address defendant's argument that the claim was inadequately pleaded because the Court lacked jurisdiction. In sum, claimant has failed to persuade the Court that it overlooked or misapprehended any matters of fact or law and that its prior ruling should be reconsidered, and claimant's motion to reargue (M-96421) will therefore be denied.
Inasmuch as the Court has denied claimant's motion to reargue, which leaves undisturbed this Court's January 12, 2021 Decision and Order dismissing the claim, claimant's motion to amend the claim (M-96417) will be denied as moot.
Accordingly, it is
ORDERED, that claimant's motion numbers M-96417 and M-96421 are hereby DENIED.
March 22, 2021
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims
1. Claim No. 135179, filed August 7, 2020, with attachments;
2. Motion to Amend the Claim (M-96417), dated October 17, 2020 and filed January 19, 2021;
3. Affirmation of Anthony Rotondi, AAG in Opposition (M-96417), dated February 8, 2021;
4. Notice of Motions for Stay to Reargue, dated February 1, 2021;
5. "Affirmation" of Paul McGinnis in Support of Motions for Stay to Reargue (M-96421), sworn
to February 2, 2021;
6. Affirmation of Anthony Rotondi, AAG in Opposition (M-96421), dated February 8, 2021;
7. Decision and Order in McGinnis v State of New York NYS DOL, UID No. 2021-038-505 (Ct
Cl, DeBow, J., January 12, 2021).
1. Although claimant's submission is styled as an "Affirmation" (see McGinnis Affirmation), he has not demonstrated that he is an individual authorized to submit an affirmation, and even if he were authorized to do so, his status as a party precludes him from making an affirmation (see CPLR 2106). However, his "affirmation" is sworn to and is the functional equivalent of an affidavit, notwithstanding how it is styled.