Opinion
# 2012-039-309 Claim No. 119451 Motion No. M-81124
05-29-2012
RODRIGUEZ v. STATE OF NEW YORK
Synopsis
Claimant's motion for leave to reargue defendant's motion to dismiss is denied. Claimant's motion seeks to relitigate the matters that were decided by the Court in the underlying decision and order or to assert new arguments. Case information
UID: 2012-039-309 Claimant(s): VICTOR RODRIGUEZ Claimant short name: RODRIGUEZ Footnote (claimant name) : Defendant(s): STATE OF NEW YORK Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): 119451 Motion number(s): M-81124 Cross-motion number(s): Judge: James H. Ferreira Claimant's attorney: Victor Rodriguez, pro se Hon. Eric T. Schneiderman Attorney General of the State of New York Defendant's attorney: By: Anthony Rotondi Assistant Attorney General Third-party defendant's attorney: Signature date: May 29, 2012 City: Albany Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
A claim was filed with the Chief Clerk of the Court of Claims on February 2, 2011. In it, claimant, an inmate proceeding pro se, sought damages for alleged negligence committed by employees of defendant. By Decision and Order filed November 7, 2011, the Court (Ferreira, J.) granted defendant's cross motion to dismiss the claim and denied, as moot, claimant's motion to strike defendant's affirmative defenses. The Court concluded that it was without jurisdiction to consider the claim because claimant failed to serve the claim upon the Attorney General by one of the authorized methods set forth in Court of Claims Act § 11(a) (i). The Court also found that the notice of intention, served upon the Attorney General in September 2010, and the claim were untimely, as they were not served or filed, respectively, within 90 days of the accrual of the claim. Claimant now moves the Court, pursuant to CPLR 2221, for leave to reargue defendant's motion to dismiss. Defendant opposes the motion.
CPLR 2221 (d) provides, in relevant part, that a 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." " '[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' " (Loris v S & W Realty Corp., 16 AD3d 729, 730 [2005], quoting Peak v Northway Travel Trailers, 260 AD2d 840, 842 [1999]; see Barnett v Smith, 64 AD3d 669, 670-671 [2009]). "Reargument is not a vehicle permitting a previously unsuccessful party to once again argue the very questions previously decided or to assert new, never previously offered arguments" (Kent v 534 E. 11th St., 80 AD3d 106, 116 [2010] [citations omitted]; see Foley v Roche, 68 AD2d 558, 567 [1979]).
In support of reargument, claimant argues that the Court "was not afforded all documentation[] to make an informal [sic] decision" regarding the accrual date of his claim (Affidavit in Support of Motion, at 2). Claimant has attached several exhibits to his affidavit, contending that this evidence establishes that his claim did not accrue until June 28, 2010. He also argues that the Court erred by faulting claimant for the delay in discovering defendant's alleged negligence.
Upon review of claimant's motion papers, the Court concludes that claimant has not established that the Court " 'overlooked or misapprehended the facts and/or the law or mistakenly arrived at its earlier decision' " (Loris v S & W Realty Corp., 16 AD3d at 730; see CPLR 2111 [d]). Rather, claimant's motion seeks to relitigate the matters that were decided by the Court in the underlying Decision and Order or to assert new, never previously offered arguments. To the extent that claimant's motion can be construed as one seeking leave to renew, such a motion "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]; see JPMorgan Chase Bank, N.A. v Malarkey, 65 AD3d 718, 719-720 [2009]). Here, claimant has not provided a reasonable justification for his failure to include the additional evidence in his original opposition papers and, in any event, the Court finds that the evidence submitted by claimant would not change the Court's prior determination.
Accordingly, it is ORDERED that Motion No. M-81124 is denied.
Albany, New York
James H. Ferreira
Judge of the Court of Claims
Papers Considered:
1. Notice of Motion for Reargument dated February 23, 2012;
2. Affidavit in Support of Motion by Victor Rodriguez sworn to on February 23, 2012 with exhibits; and
3. Affirmation in Opposition by Anthony Rotondi, AAG dated March 1, 2012.