Opinion
# 2016-040-018 Claim No. 120934 Motion No. M-87849
03-02-2016
THOMAS E. BOWLES, III v. STATE OF NEW YORK, JUDGE CATHRINE M. DOYLE, COUNTY COURT OF ALBANY COUNTY & APPELLATE DIVISION 3RD DISTRICT
Thomas E. Bowles, III, Pro Se ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Paul F. Cagino, Esq., AAG
Synopsis
Claimant's motion for reargument and renewal denied.
Case information
| UID: | 2016-040-018 |
| Claimant(s): | THOMAS E. BOWLES, III |
| Claimant short name: | BOWLES |
| Footnote (claimant name) : | |
| Defendant(s): | STATE OF NEW YORK, JUDGE CATHRINE M. DOYLE, COUNTY COURT OF ALBANY COUNTY & APPELLATE DIVISION 3RD DISTRICT |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 120934 |
| Motion number(s): | M-87849 |
| Cross-motion number(s): | |
| Judge: | CHRISTOPHER J. McCARTHY |
| Claimant's attorney: | Thomas E. Bowles, III, Pro Se |
|---|---|
| Defendant's attorney: | ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Paul F. Cagino, Esq., AAG |
| Third-party defendant's attorney: | |
| Signature date: | March 2, 2016 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
For the reasons set forth below, Claimant's motion, which the Court considers to be a motion for reargument and renewal of this Court's prior Decision and Order granting Defendant's motion to dismiss pursuant to CPLR 2221(a), (d) and (f) (Bowles v State of New York, UID No. 2012-040-043 [Ct Cl, McCarthy, J., May 22, 2012]), is denied.
This pro se Claim, which was filed with the Clerk of the Court on February 15, 2012, asserts that the County of Albany brought an action in Albany County Court against Claimant to foreclose for unpaid tax liens against a rental property owned by Claimant in Watervliet, New York. The County Court judge did not allow Claimant's rental agent (a non-lawyer) to appear on Claimant's behalf as attorney-in-fact. By Order entered on December 8, 2008, County Court granted Albany County's motion for summary judgment. By Decision dated January 19, 2012, the Appellate Division, Third Department, dismissed Claimant's appeal of the County Court Order. Claimant's claim asserts that both County Court and the Appellate Division, Third Department, violated his due process rights. This Court found that Claimant failed to establish that the actions of the Albany County Court judge and/or the Appellate Division judges were performed without any jurisdiction over the subject matter and, accordingly, that judicial immunity applies to this Claim.
Claimant's motion papers refer to the due process violations allegedly committed by the City of Watervliet, the County of Albany and by Judge Doyle.
A motion for reargument, addressed to the discretion of the Court, is designed to afford a party an opportunity to establish that the Court overlooked or misapprehended the relevant facts or misapplied the controlling principle of law (Matter of Anthony J. Carter, DDS, P.C. v Carter, 81 AD3d 819, 820 [2d Dept 2011]; Adderley v State of New York, 35 AD3d 1043, 1043 [3d Dept 2006]). Its purpose is not to serve as a vehicle to permit an unsuccessful party to argue once again the very questions previously decided (Fosdick v Town of Hempstead, 126 NY 651, 652 [1891]; Matter of Anthony J. Carter, DDS, P.C. v Carter, supra at 820). If such a motion contains new proof, it is a "renewal" motion, rather than a "reargument" motion, and should be treated as such (Connors, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C2221:7 at 282; CPLR C2221:9 at 287). An application for leave to renew must be based upon newly discovered material facts that existed at the time the prior motion was made but which were not then known to the party seeking leave to renew, as well as a justifiable excuse for failing to present such facts to the Court in connection with the initial motion (Trump on the Ocean, LLC v State of New York, 79 AD3d 1325, 1326-1327 [3d Dept 2010]; Tibbits v Verizon N.Y., Inc., 40 AD3d 1300, 1302-1303 [3d Dept 2007]).
Upon a review of Claimant's motion papers and the Court's Decision upon the original motion, and upon due deliberation, the motion for reargument is denied as Claimant has failed to allege or establish that the Court overlooked or misapprehended the relevant facts or misapplied the controlling principle of law (Adderley v State of New York, supra; Matter of Anthony J. Carter, DDS, P.C. v Carter, supra). In addition, the motion to reargue is untimely as pursuant to CPLR 2221 (d), a party has 30 days to make a motion to reargue. The motion for renewal is denied as Claimant has not come forward with any new facts which existed at the time the prior motion was made but which were not then known to him or a justifiable excuse for not having presented them to the Court at the time the original motion was made (Trump on the Ocean, LLC v State of New York, supra; Tibbits v Verizon N.Y., Inc., supra).
Based upon the foregoing, Claimant's motion is denied.
March 2, 2016
Albany, New York
CHRISTOPHER J. McCARTHY
Judge of the Court of Claims The following papers were read and considered by the Court on the motion for reargument and renewal: Papers Numbered Notice of Motion & Exhibits attached 1 Letter in Opposition from Assistant Attorney General Paul F. Cagino 2 Statement from Claimant with Exhibits attached 3 Filed Papers: Claim