Motion by proposed executor of the estate of her deceased husband for reconsideration of prior decision of the Court is denied. CPLR does not provide a mechanism for reconsideration. As the movant is pro se, Court applies CPLR 2221, by which a party may move for permission to reargue or renew a prior motion, and finds no basis to change determination.
|Claimant short name:||SCOTT|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Claim number(s):||125075, 126401|
|Judge:||J. DAVID SAMPSON|
|Claimant's attorney:||DIANA SCOTT, as Proposed Executor of the Estate of BURTON SCOTT, Pro se|
|Defendant's attorney:||HON. BARBARA D. UNDERWOOD
New York State Attorney General
BY: Timothy J. Flynn, Esq.
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||November 20, 2018|
|See also (multicaptioned case)|
Diana Scott as the proposed executor of the estate of her deceased husband, Burton Scott, filed motion no. M-92796 seeking reconsideration of this Court's prior decision in Scott v The State of New York, UID No. 2018-053-534 (Ct Cl, Sampson, J., June 19, 2018). Defendant opposes the motion.
The New York Civil Practice Law and Rules (CPLR) does not provide a mechanism for reconsideration of a prior decision. Pursuant to CPLR Rule 2221, a party may move for permission to reargue or to renew a prior motion. A motion for reargument is addressed at the discretion of the Court and allows a party the opportunity to establish that the Court overlooked or misapprehended matters of fact or law in determining the prior motion (see CPLR Rule 2221[d]). Its purpose is not, however, to afford the unsuccessful party an opportunity to reargue the same issues previously decided; nor does reargument afford the unsuccessful party the opportunity to advance arguments different from those presented during the original motion (Foley v Roche, 68 AD2d 558 [1st Dept 1979]). In the present motion, Diana Scott, the proposed executor of her deceased husband's estate, submits for the first time her own affidavit in support of the motion. In her affidavit, she cites to the Federal Rules of Civil Procedure and relies upon a decision from the United States Court of Appeals for the District of Columbia Circuit (McSurely v McClellan, 753 F2d 88 [D.C. Cir. 1985]). Neither the federal rules nor a federal court decision is applicable to the present motion. It thus appears that the proposed executor is attempting by her present motion to reargue the very question previously decided. Insofar as this motion can be construed as a motion for reargument, it must be denied.
Pursuant to CPLR Rule 2221 (e) (2), a motion to renew "shall be based upon new facts not offered on the prior motion that would change the prior determination or shall demonstrate that there has been a change in the law that would change the prior determination." In addition, a motion to renew must contain a reasonable justification for the failure to present the new facts on the prior motion (CPLR Rule 2221 [e] ). Here, the Court finds that no new facts are being presented and no justification is offered for failing to set forth any new facts. Further, nothing in the present motion reveals anything to persuade the Court to change the prior determination.
Finally, the Court recognizes that the proposed executor is proceeding pro se. While aware of the procedural difficulties that may attend to an individual proceeding pro se, a pro se litigant must be acquainted with basic rules of procedure. If she was not satisfied with the prior decision, she had the ability to directly appeal that decision, in lieu of requesting a "do-over" (Simpson v The State of New York, UID No. 2018-038-573 [Ct Cl, DeBow, J., Aug. 1, 2018]).
The proposed executor is reminded that the defendant has not moved to dismiss her deceased husband's claims. She should follow the required procedures by petitioning the Surrogate's Court in the county in which her deceased husband last resided for a letter appointing her executor of her husband's estate or for letters of administration permitting her to pursue her husband's claims. In order to assist her in the process, Surrogate's Court will generally have on staff an attorney(s) who will be able to assist a petitioner in preparing the necessary papers to obtain an appointment or letters of administration.
Accordingly, motion no. M-92796, insofar as it can be construed as either a motion for leave to reargue or a motion to renew the prior motion, is denied.
November 20, 2018
Buffalo, New York
J. DAVID SAMPSON
Judge of the Court of Claims
The following were read and considered by the Court:
1. Notice of motion for reconsideration and affidavit of Diana Scott sworn to August 30, 2018 and affirmation of Jose Hernandez who was apparently appointed by Wende Correctional Facility to provide legal assistance to the deceased;(1)
2. Opposing affidavit of Assistant Attorney General Timothy J. Flynn sworn to October 1, 2018.
1. Mr. Hernandez is not a person authorized to use an affirmation in lieu of an affidavit sworn to before a Notary Public (CPLR 2106).