Opinion
# 2013-038-513 Claim No. 117932 Motion No. M-82940
03-11-2013
JOSEPH K. FARRELL v. BARUCH COLLEGE-THE CITY UNIVERSITY OF NEW YORK
Synopsis
Claimant's motion to renew and/or reargue prior decision dismissing claim on jurisdictional grounds denied. While Court did not cite claimant's inapplicable cases in its decision, the Court did not overlook applicable law. To the extent that claimant's motion to renew is based upon new legislation, claimant has not demonstrated the applicability of that legislation and thus, has not shown that it would change the prior decision.
Case information
UID: 2013-038-513 Claimant(s): JOSEPH K. FARRELL Claimant short name: FARRELL Footnote (claimant name) : Defendant(s): BARUCH COLLEGE-THE CITY UNIVERSITY OF NEW YORK Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): 117932 Motion number(s): M-82940 Cross-motion number(s): Judge: W. BROOKS DeBOW BURNS & HARRIS Claimant's attorney: By: Judith F. Stempler, Esq. ERIC T. SCHNEIDERMAN, Attorney General Defendant's attorney: of the State of New York By: Suzette Corinne Rivera, Assistant Attorney General Third-party defendant's attorney: Signature date: March 11, 2013 City: Albany Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
This Court previously granted defendant's motion to dismiss this claim on jurisdictional grounds, having determined that neither a notice of intention to file a claim nor the claim itself had been timely served on the Attorney General (see Farrell v Baruch College-The City University of New York, UID No. 2012-038-574 [Ct Cl, DeBow, J., Oct. 30, 2012]). Claimant moves pursuant to CPLR 2221 for leave to renew and/or reargue the prior motion. Defendant opposes the motion.
A motion for leave to reargue "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 question 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]). In support of his motion, claimant alleges that "[t]he Court's decision fails to consider cases cited by plaintiff [sic] in which notice to the state agency directly involved was considered to confer notice upon the Attorney General" (Stempler Affirmation, ¶ 14). Claimant points to Avila v State of New York (131 Misc 2d 449 [Ct Cl 1986]), Matter of Crawford v City University of New York (131 Misc 2d 1013 [Ct Cl 1986]), and Matter of Krales v City of New York (128 Misc 2d 168 [Ct Cl 1985]). While it is true that this Court's decision does not cite or discuss those cases, those cases were cited by claimant in his opposition to the motion to dismiss (see Stempler Affirmation, Exhibit 3 [Salimbene Affirmation in Opposition to Motion to Dismiss, at ¶ 8]), and claimant's allegation that they were not considered by the Court is simply incorrect. The Court's decision relied upon applicable and controlling caselaw, and does not discuss the cases that were cited by claimant because they were neither applicable nor persuasive. Briefly, Avila and Crawford discussed the actual or constructive notice to the Attorney General of certain incidents within the context of motions pursuant to Court of Claims Act § 10 (6), in which a court's exercise of discretion to permit a late claim must include consideration of, inter alia, whether the defendant had notice of the incident. In this case, however, actual notice and/or substantial compliance with the service provisions of the Court of Claims Act is insufficient to confer jurisdiction over a claim. To the extent that the trial court's decision in Krales holds otherwise, the failure of that court to strictly apply the service requirements of the Education Law and the Court of Claims Act was expressly rejected by the Appellate Division (see Finnerty v New York State Thruway Auth., 140 AD2d 941, 942-943 [4th Dept 1988], affirmed 75 NY2d 721 [1989]). Because claimant has not demonstrated that the Court overlooked controlling law, and merely reasserts the arguments made on the prior motion, the instant motion for permission to reargue the prior motion will be denied.
As relevant here, a motion to renew "shall demonstrate that there has been a change in the law that would change the prior determination" (CPLR 2221 [e] [2]; see Alexy v Stein, 16 AD3d 989 [3d Dept 2005]; Matter of Beiny v Wynyard, 132 AD2d 190 [1st Dept 1987], appeal dismissed 71 NY2d 994 [1988]). Here, claimant cites the "Uniform Notice of Claim Act," which - like Court of Claims Act § 10 (6) - equitably permits a court to extend the time to serve a notice of claim against a governmental entity upon a consideration of whether the delay caused prejudice to the defense of the claim (see Stempler Affirmation, ¶¶ 27-31). However, assuming, as claimant asserts, that the legislation that was signed into law on December 17, 2012 permits a Court to extend the time to serve a notice of claim, claimant has not demonstrated that the legislation applies to the claim that was dismissed in that: (1) the bill expressly explains that "nothing herein is intended to amend the Court of Claims Act or any provision thereof" (Stempler Affirmation, Exhibit 5, Assembly Bill No. 10657-A, June 12, 2012, at § 2; see also CPLR § 217-a), and (2) the bill expressly states that it is not in effect until 180 days after becoming law (i.e. June 15, 2013), and its application is expressly prospective only (see (Stempler Affirmation, Exhibit 5, Assembly Bill No. 10657-A, June 12, 2012, at § 79). Accordingly, claimant has not demonstrated that this new provision of law would change this Court's prior determination, and thus, his motion to for permission to renew the prior motion will be denied. Thus, it is
ORDERED, that claimant's motion number M-82940 is DENIED.
March 11, 2013
Albany, New York
W. BROOKS DeBOW
Judge of the Court of Claims
Papers considered:
(1) Notice of Motion to Renew and/or Reargue, dated January 31, 2013;
(2) Affirmation of Judith F. Stempler, Esq. in Support of Motion to Renew and/or Reargue, dated January 31, 2013, with Exhibits 1-6);
(3) Affirmation of Suzette Corinne Rivera, AAG, in Opposition to Motion to Renew and/or Reargue, dated February 21, 2013;
(4) Reply Affirmation of Judith F. Stempler, Esq. in Support of Motion to Renew and/or Reargue, dated February 25, 2013.