Opinion
# 2011-049-020Claim No. 114494Motion # 2011-049-020Claim No. M-80581M-80699
12-22-2011
O'DIAH v. STATE OF NEW YORK
Synopsis
Case information
UID: 2011-049-020 Claimant(s): AROR ARK O'DIAH Claimant short name: O'DIAH Footnote (claimant name) : Defendant(s): STATE OF NEW YORK Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): 114494 Motion number(s): M-80581, M-80699 Cross-motion number(s): Judge: David A. Weinstein Claimant's attorney: Aror Ark O'Diah, Pro Se Eric T. Schneiderman, NYS Attorney General Defendant's attorney: By: John M. Hunter, Assistant Attorney General Third-party defendant's attorney: Signature date: December 22, 2011 City: Albany Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
By order filed July 7, 2011, this Court directed claimant Aror Ark O'Diah to show cause why his claim should not be dismissed for failure to serve defendant in accordance with Court of Claims Act § 11(a). Claimant filed a response, which included the following statement: "On [or] about October 22, 2007, I, Aror Ark O'Diah, served [the present claim] on The New York State Attorney General by certified [sic] with return receipt requested U.S. postal mail."By Decision and Order filed October 17, 2011, this Court dismissed O'Diah's claim for lack of proper service, finding that "the Attorney General has adduced sufficient proof to show that it has not been served, and claimant has failed to meet his burden of showing that he has served his claim in accordance with the requirements of the Court of Claims Act."
O'Diah's filings sometimes capitalize entire words. That capitalization has been altered in the quotations used in this decision to conform to standard conventions of capitalization in court opinions.
On October 31, 2011, O'Diah moved for a 60-day extension of time to a file motion to "vacate, set aside, [and] declare null and void" the Court's prior order (Motion No. M-80581). This motion is supported by a signed statement by O'Diah, asserting that his "common law wife" Yonette Grant served his claim in the present action by mail and "in person" on the Attorney General. This contention had not been included in O'Diah's original response to the Order to Show Cause.
In response to this motion, the Attorney General filed an affirmation by Assistant Attorney General John Hunter, which states that O'Diah's proposed reconsideration motion was "merely changing his theory of how service was made."
Subsequently, on December 5, 2011, O'Diah filed a motion "to vacate prior decision and order," seeking to undo the decision filed October 17 (Motion No. M-80699). In this motion, O'Diah argues again, with some greater detail, that Ms. Grant had served his claim both by mail and in person on the New York Attorney General. Specifically, he states that he had attempted to serve the claim by certified mail, return receipt requested on November 6, 2007, but his submission was returned to him because he had insufficient funds in his inmate account (O'Diah Aff. ¶ 2[b] - [c]). Then, on November 10, 2007, Grant met him at the Cayuga Correctional Facility. O'Diah avers that he gave Grant various legal papers during that visit, and that she both mailed the present claim to the Attorney General's Office on November 13, 2007, and served it in person some time between November 14 and 19.
O'Diah appends various materials that purport to support this conclusion. These include an affidavit signed by Grant dated November 12, 2011, that states: "On [or] about October 22, 2007, through November 19, 2007, I, Yonette A. Grant, served on the New York State Attorney General Office . . ., in person and by mail . . . [the] claim in the above-captioned claims and action . . . ." Also appended to O'Diah's motion, however, is a letter from Grant to O'Diah dated November 14, 2007. Among other things, it states: "So I do as you directed me to do. Your son also give me $100.00 to send the mails out. So I get all the mails taken care of." The letter does not mention any in person delivery of O'Diah's claim.
In response to this second motion, the defendant filed another affirmation by Hunter, reiterating that O'Diah's submission contradicts his prior assertions as to how service was effectuated. In addition, the State has submitted an affidavit by Latish Gilbert, a clerk in the Managing Clerk's Office of the New York Attorney General. The affidavit states that, prior to 2008, that office maintained an annual register of documents personally served upon it. Gilbert attests that she conducted a search of the register for the time period during which O'Diah now asserts that personal service was effectuated, and no record of such service was present therein.
Discussion
While O'Diah's motions do not cite the statutory basis for the relief sought, they arguably fall under one of two provisions of the CPLR: section 2221 or section 5015.
CPLR § 2221 allows a party to seek "leave to renew" a prior order, where the motion sets forth "new facts not offered on the prior motion that would change the prior determination" or "demonstrate that there has been a change in the law that would change the prior determination." The motion must "contain reasonable justification for the failure to present such facts on the prior motion" (CPLR § 2221[e][3]) CPLR § 2221[e][2]).
CPLR § 5015(a)(2) permits the court that "rendered a judgment or order" to "relieve a party" therefrom on the grounds of "newly discovered evidence" which would have warranted a different result, and which could not have been timely introduced when the original decision was made(see Maddux v Schur, 53 AD3d 738, 739 [3d Dept 2008] [denying section 5015 motion where plaintiff failed to "sustain her burden of establishing that the newly discovered evidence could not, with due diligence, have been discovered earlier"]. As relevant to the present motion, there is no material difference in the standards that govern these two provisions (see Levitt v County of Suffolk, 166 AD2d 421 [2d Dept 1990] [analyzing renewal motion under both provisions, without differentiating between them]; Velez v State of New York, UID No. 2008-030-559, Claim No. 111537, Motion No. M-75309, Scuccimarra, J. [Sept. 16, 2008] [granting motion for leave to renew brought under CPLR § 2221; noting (at n.1) that motion made under section 5015 would involve "similar analysis in any event"]). I proceed, therefore, to consider whether O'Diah's submission meets these statutory requirements.
Specifically, the statute states in pertinent part: "The court which rendered a judgment or order may relieve a party from it upon such terms as may be just, on motion of any interested person . . ., upon the ground of . . . newly-discovered evidence which, if introduced at the trial, would probably have produced a different result and which could not have been discovered in time to move for a new trial under section 4404" (CPLR § 5015[a][2]). Notwithstanding the statute's specific reference to an application for a new trial, courts have applied this provision to other dispositive rulings, such as motions for reconsideration of a grant of summary judgment (see e.g. Ramos v 1199 Hous. Corp., 6 AD3d 416 [2d Dept 2004]).
As an initial matter, since there is no time limit on filing a motion to renew pursuant to either section, motion no. M-80581 is unnecessary, as motion no. M-80699 has been timely filed. While claimant must exercise "due diligence" in bringing a renewal motion promptly (Booth v 3669 Delaware, 275 AD2d 974, 974-75 [4th Dept 2000]), there is nothing in the present record to indicate that O'Diah engaged in any unnecessary delay between the decision and order of October 17, 2011 and the filing of his motion to renew.
Nevertheless, motion no. M-80699 must fail on its merits. Under both section 2221 and section 5015, the movant must set forth why the evidence submitted on the motion to renew was not included in the filings made on the prior motion. O'Diah has made no such showing.
O'Diah states generally that his motion is based upon "newly discovered evidence not immediately available prior to September 13, 2011." He nowhere explains, however, why his present assertions as to how his claim was served could not have been made at the time of his prior motion. This is not a case where claimant has gained access to additional evidence of which he was previously unaware, and which he could not have discovered earlier. Rather, O'Diah's narrative as to how his claim was served has simply morphed from the one initially presented to the Court into an altogether different account. O'Diah does not explain the reason for this transformation, or what prevented him from describing Ms. Grant's purported role in effecting service on defendant in his initial filing.
A motion to renew is a vehicle for introducing new evidence which, despite a party's best efforts, could not have been secured prior to the decision being challenged. Such a motion cannot be used by a claimant to simply change his story, and try out a new set of factual allegations when those first presented have proven unsuccessful. As noted in Matter of Weinberg (132 AD2d 190, 210 [1st Dept 1987], lv dismissed 71 NY2d 994 [1988]), "[r]enewal is granted sparingly . . . it is not a second chance freely given to parties who have not exercised due diligence in making their first factual presentation" (see also Dervisevic v Dervisevic, 89 AD3d 785 [2d Dept 2011] [same]).
For the reasons stated above, it is ORDERED that claimant's motion no. M-80699 be denied and that claimant's motion no. M-80581 be denied as moot.
December 22, 2011
Albany, New York
David A. Weinstein
Judge of the Court of Claims
Papers Considered
1. Claimant's Application for extension of time to file a Motion and Affidavit in Support, M-80581.
2. Defendant's Affirmation in Opposition, M-80581.
3. Claimant's Reply Declaration, filed December 1, 2011.
4. Claimant's Notice of Motion and Affidavit in Support, and annexed Exhibit, M-80699.
5. Defendant's Affirmation in Opposition, and annexed Exhibit, M-80699.
6. Claimant's Reply Declaration, filed December 24, 2011.