Opinion
# 2017-038-538 Claim No. 127681 Motion No. M-89777
05-22-2017
DOMINIC M. FRANZA, 92A3659 v. THE STATE OF NEW YORK
DOMINIC M. FRANZA, Pro se ERIC T. SCHNEIDERMAN, Attorney General of the State of New York By: J. Gardner Ryan, Assistant Attorney General
Synopsis
Claimant's motion to reargue prior order dismissing the claim denied.
Case information
| UID: | 2017-038-538 |
| Claimant(s): | DOMINIC M. FRANZA, 92A3659 |
| Claimant short name: | FRANZA |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 127681 |
| Motion number(s): | M-89777 |
| Cross-motion number(s): | |
| Judge: | W. BROOKS DeBOW |
| Claimant's attorney: | DOMINIC M. FRANZA, Pro se |
| Defendant's attorney: | ERIC T. SCHNEIDERMAN, Attorney General of the State of New York By: J. Gardner Ryan, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | May 22, 2017 |
| City: | Saratoga Springs |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant moves to reargue a prior order of this Court, which granted defendant's motion to dismiss the claim on the grounds that it failed to state a cause of action (see Franza v State of New York, UID No. 2016-038-556 [Ct Cl, DeBow, J., Sep. 1, 2016]). Defendant opposes the motion.
A motion for leave to reargue is addressed to the discretion of the Court, and such a motion "shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion" (CPLR 2221 [d] [2]; see Schneider v Solowey, 141 AD2d 813 [2d Dept 1988]; Foley v Roche, 68 AD2d 558 [1st Dept 1979]). Such a motion does not permit an unsuccessful party to simply argue again the very questions previously decided (see Fosdick v Town of Hempstead, 126 NY 651 [1891]; Matter of Mehta v Mehta, 196 AD2d 841, 842 [2d Dept 1993]; William P. Pahl Equip. Corp. v Kassis, 182 AD2d 22 [1st Dept 1992], lv dismissed in part, lv denied in part, 80 NY2d 1005 [1992]).
Claimant has failed to demonstrate that the Court overlooked or misapprehended any matter of fact or law in its initial decision. Although claimant argues that the Court overlooked that the claim pleaded the elements of a special relationship that would give rise to a special duty, such is plainly not the case. Claimant reasserts his prior position that he pleaded the elements of a special relationship, but he does not reference any specific allegations in the claim in support of his argument. Reviewing again the claim that was considered on the initial order, the Court is simply unable to discern any factual allegations that would give rise to a special relationship, and even construing this pro se litigant's pleading most liberally, the facts as pleaded in the claim simply do not support any cognizable legal theory.
Accordingly, it is
ORDERED, that claimant's motion number M-89777 is DENIED.
May 22, 2017
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims Papers considered: (1) Claim number 127681, filed March 21, 2016; (2) Decision and Order, Franza v State of New York, UID No. 2016-038-556 (Ct Cl, DeBow, J., Sept. 1, 2016) (3) Notice of Motion for Reargument, dated December 7, 2016; (4) Affidavit of Dominic M. Franza in Support of Motion for Reargument, sworn to December 4, 2016; (5) Affirmation of J. Gardner Ryan, AAG, dated February 6, 2017.