Opinion
# 2011-040-078 Motion No. M-80544
12-19-2011
HANCE v. THE STATE OF NEW YORK
Synopsis
Movants' motion for reargument and renewal denied. Case information
UID: 2011-040-078 Claimant(s): RICKY HANCE and VALERY HANCE Claimant short name: HANCE Footnote (claimant name) : Defendant(s): THE STATE OF NEW YORK Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): NONE Motion number(s): M-80544 Cross-motion number(s): Judge: CHRISTOPHER J. McCARTHY POISSANT, NICHOLS, GRUE & VANIER, P.C. Claimant's attorney: By: Joseph P. Nichols, Esq. ERIC T. SCHNEIDERMAN Defendant's attorney: Attorney General of the State of New York By: Michael C. Rizzo, Esq., AAG Third-party defendant's attorney: Signature date: December 19, 2011 City: Albany Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
For the reasons set forth below, Movants' motion pursuant to CPLR 2221(a) and (f), for reargument and renewal of this Court's prior Decision and Order (Hance v State of New York, Ct Cl, Claim No. None, Motion No. M-79995, August 18, 2011, McCarthy, J. [2011-040-042]), is denied.
The proposed Claim alleges that, on January 3, 2011 at approximately 12:10 a.m., Movantwas proceeding up the back stairs to the apartment he was renting located at 137 Homer Avenue in Comstock, New York. He further asserts that, as he reached the top step, his foot slipped due to an accumulation of slush, ice and snow that was about one-and-one-half-inches deep. Mr. Hance further asserts that: it was not snowing at the time of the incident and had not snowed all day; there were no handrails to grab onto to stabilize himself when he slipped; the lighting was poor; and he fell backwards and hurt his shoulder and neck (Ex. A attached to Motion, Affidavit of Ricky Hance in support of Motion No. M-79995, ¶ 4). He further asserts "[u]pon information and belief, that [the] apartment is owned by the State of New York and [is] part of the Great Meadow Correctional Facility/Washington Correctional Facility in Comstock, New York. I had been renting and was a tenant at those premises" (id., ¶ 3).
As the proposed Claim of Valery Hance is derivative in nature, all references to Movant shall be to Ricky Hance.
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 [3d 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, 81 AD3d 819, 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]; Tibbets v Verizon N.Y., Inc., 40 AD3d 1300, 1302-1303 [3d Dept 2007]).
Upon a review of Movant's motion papers, his affidavit in support of the motion and exhibits attached thereto, Defense counsel's affirmation in opposition and the Court's Decision upon the original motion, and upon due deliberation, the motion for reargument is denied as Movant has failed to establish that the Court overlooked or misapprehended the relevant facts or misapplied the controlling principle of law (Adderley v State of New York, 35 AD3d 1043, supra; Matter of Anthony J. Carter, DDS, P.C. v Carter, 81 AD3d 819, supra). Movant has offered a hearsay statement that an unnamed person at the Washington County Real Property Tax Services office advised him that the subject property is owned by the State of New York (Hance Affidavit, ¶ 10). Attached to Mr. Hance's affidavit as Exhibit C is a copy of a tax map, allegedly showing that the property is owned by the State of New York; however, the Court notes that the map is not certified and it cannot glean any information from the copy provided. Movant has failed to establish that the subject property is owned by the State. The motion for renewal also is denied as Movant 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, 79 AD3d 1325, supra; Tibbets v Verizon N.Y., Inc., 40 AD3d 1300, supra).
Based upon the foregoing, Movant's motion is denied in its entirety. If Movant desires, he may still make a motion pursuant to Court of Claims Act § 10(6), upon submission of the appropriate papers, prior to expiration of the underlying Statute of Limitations.
December 19, 2011
Albany, New York
CHRISTOPHER J. McCARTHY
Judge of the Court of Claims
The following papers were read and considered by the Court on Movant's motion for reargument and renewal:
Papers Numbered
Notice of Motion, Affidavit in Support & Exhibits attached 1
Affirmation in Opposition 2