New York State Court of Claims

New York State Court of Claims
RODRIGUEZ v. THE STATE OF NEW YORK, # 2018-041-081, Claim No. 129687, Motion No. M-92832

Synopsis

Claimant's motion (M-92832) to reargue/renew defendant's prior dismissal motion (M-92240), which resulted in dismissal of claim for failure to serve claim by certified mail, return receipt requested, is denied; claimant's reargument/renewal motion is based upon the purported "new" fact that claimant served the claim by certified mail, return receipt requested, while the dismissal motion (M-92240) was pending, and claimant offers no reasonable justification, as required by CPLR 2221, for not presenting this "new" fact on the prior motion; additionally, certified mail service of the claim on defendant while the dismissal motion was pending, more than eighteen months after accrual of the claim on November 13, 2016, was untimely because claimant's notice of intention to file a claim was served on March 7, 2017, more than ninety days after accrual, was untimely, and thus did not extend claimant's time to serve and file his claim.

Case information

UID: 2018-041-081
Claimant(s): LORENZO RODRIGUEZ
Claimant short name: RODRIGUEZ
Footnote (claimant name) :
Defendant(s): THE STATE OF NEW YORK
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 129687
Motion number(s): M-92832
Cross-motion number(s):
Judge: FRANK P. MILANO
Claimant's attorney: LORENZO RODRIGUEZ
Pro Se
Defendant's attorney: HON. BARBARA D. UNDERWOOD
New York State Attorney General
By: Glenn C. King, Esq.
Assistant Attorney General
Third-party defendant's attorney:
Signature date: November 29, 2018
City: Albany
Comments:
Official citation:
Appellate results:
See also (multicaptioned case)

Decision

Claimant moves (M-92832) for reargument and renewal of defendant's dismissal motion (M-92240) which resulted in a Decision and Order, filed July 27, 2018, dismissing the claim because the claim had not been served by certified mail, return receipt requested.

In Peak v Northway Travel Trailers, Inc. (260 AD2d 840, 842 [3d Dept 1999]), the court explained that "[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."

Claimant has not shown that the Court "overlooked or misapprehended" any relevant facts or law in its prior determination (see CPLR 2221 [d] [2]).

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] [2] and [3]). 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]).

It appears, however, that claimant is attempting to offer the "new" fact that he allegedly served a copy of the claim on defendant by certified mail, return receipt requested, on May 21, 2018, while the defendant's dismissal motion (M-92240), with a return date of June 13, 2018, was pending (see letter of the Clerk of the Court of Claims dated May 11, 2018).

It is important to note that claimant's only opposition to the defendant's dismissal motion (M-92240) was his letter, dated May 15, 2018, enclosing an affidavit of service of the claim on the Attorney General, on May 14, 2018, by "First Class U.S. Mail."

Claimant's reargument/renewal motion (M-92832) provides no evidence that claimant ever provided proof to the Court of the alleged service of the claim on defendant by certified mail, return receipt requested, on May 21, 2018. As set forth above, the return date of the defendant's dismissal motion was June 13, 2018, giving claimant ample opportunity to have provided such proof. Claimant has provided no "reasonable justification for the failure to present such facts on the prior motion" (CPLR 2221 [e] [3]).

Even had claimant provided a reasonable justification for not presenting this "new" fact on the prior motion, the claim served on defendant by certified mail, return receipt requested, on May 21, 2018, was untimely served, more than eighteen months after its stated accrual of November 13, 2016.

Court of Claims Act section 10 (3) provides as follows:

"A claim to recover damages for injuries to property or for personal injuries caused by the negligence or unintentional tort of an officer or employee of the state while acting as such officer or employee, shall be filed and served upon the attorney general within ninety days after the accrual of such claim, unless the claimant shall within such time serve upon the attorney general a written notice of intention to file a claim therefor, in which event the claim shall be filed and served upon the attorney general within two years after the accrual of such claim."

The claim served by claimant on defendant on May 21, 2018, by certified mail, return receipt requested, was untimely because the record on this motion shows that claimant's notice of intention to file a claim was signed by claimant on February 27, 2017 and served on defendant on March 7, 2017, each date more than ninety days after the stated accrual of the claim on November 13, 2016. The notice of intention to file a claim thus did not extend claimant's time to serve and file his claim beyond the ninety period set forth in Court of Claims Act 10 (3), a period which expired on February 11, 2017.

The notice of intention to file a claim was not timely served and, for that reason alone, cannot be treated as a claim pursuant to Court of Claims Act 10 (8) (a), as suggested by claimant:

"A claimant who timely serves a notice of intention but who fails to timely serve or file a claim may, nevertheless, apply to the court for permission to treat the notice of intention as a claim. The court shall not grant such application unless: it is made upon motion before an action asserting a like claim against a citizen of the state would be barred under the provisions of article two of the civil practice law and rules; the notice of intention was timely served, and contains facts sufficient to constitute a claim; and the granting of the application would not prejudice the defendant."

For all of the foregoing reasons, the claimant's motion for reargument/renewal is denied.

November 29, 2018

Albany, New York

FRANK P. MILANO

Judge of the Court of Claims

Papers Considered:

1. Claimant's Notice of Motion to Reargue Renue [sic] Pursuant to CPLR 2221, filed September 13, 2018;

2. Affidavit of Lorenzo Rodriguez, sworn to September 5, 2018, and attached exhibits;

3. Letter of Assistant Attorney General Glenn C. King, dated October 19, 2018;

4. Letter of Lorenzo Rodriguez, dated October 30, 2018;

5. Letter of the Clerk of the Court of Claims, dated May 11, 2018;

6. Letter of Lorenzo Rodriguez, dated May 15, 2018, enclosing an affidavit of service of the claim on the Attorney General, on May 14, 2018, by "First Class U.S. Mail."