Opinion
# 2011-040-034 Claim No. 115650 Motion No. M-79805
06-30-2011
JOHN J. SERESKY v. STATE OF NEW YORK
Synopsis
State's motion to renew and reargue is denied. Case information
UID: 2011-040-034 Claimant(s): JOHN J. SERESKY Claimant short name: SERESKY Footnote (claimant name) : Defendant(s): STATE OF NEW YORK Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): 115650 Motion number(s): M-79805 Cross-motion number(s): Judge: CHRISTOPHER J. McCARTHY New York State Law Enforcement Officers Union Claimant's attorney: District Council 82, AFSCME, AFL-CIO By: Matthew P. Ryan, Esq. ERIC T. SCHNEIDERMAN Defendant's attorney: Attorney General of the State of New York By: Joan Matalavage, Esq., AAG Third-party defendant's attorney: Signature date: June 30, 2011 City: Albany Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
For the reasons set forth below, Defendant's motion pursuant to CPLR 2221(a) and (f), for reargument and renewal of this Court's prior Decision and Order (Seresky v State of New York, Ct Cl, Claim No. 115650, Motion Nos. M-78295, CM-78296, January 10, 2011, McCarthy, J. [2011-040-002]), is denied.
The Claim alleges that Claimant was employed by the New York State Department of Correctional Services ("DOCS") as a Correction Lieutenant. It further alleges that, on or before June 28, 1982, Claimant entered into an express and/or implied contract with Defendant, acting through DOCS, for the deduction of three percent of Claimant's gross salary earned after Claimant became an employee of the State and a member of the New York State and Local Employees' Retirement System ("Retirement System"). The agreement required DOCS to deduct, report and tender three percent of gross salary earned ("mandatory service credit costs") to the Retirement System. It is asserted that Defendant, through DOCS, breached the agreement by failing to deduct, report and tender the three percent mandatory service credit costs to the Retirement System on behalf of Claimant for the period June 28, 1982 to July 28, 1982. It is alleged that the Claim accrued on March 18, 2008, when Claimant was notified by the Retirement System that Defendant failed to deduct, report and tender the mandatory service credit costs for the above-mentioned time period. The Claim seeks damages for breach of contract in the sum of $125.28, which consists of the original three percent mandatory service credit costs plus five percent interest calculated from the date the amount was owed to the date Claimant paid it.
The Court notes that Claimant seeks damages only in the amount of the accrued interest (Claimant's Counsel's Affirmation in Opposition, ¶¶ 16, 20-21 and Ex. A attached thereto; Claimant's Affidavit, ¶ 12).
Those motions originally were returnable on June 23, 2010. The return date was adjourned by the Court, after conferring with counsel for the parties, to October 13, 2010 and, subsequently, was adjourned, at Defendant's request and without opposition from Claimant, to November 10, 2010. The Court adjourned the motion to allow the parties to address several specific issues the Court believed remained unanswered.
The State's motion for summary judgment dismissing the Claim insofar as it alleges breach of an express contract was granted. With respect to the remainder of Defendant's motion and the entirety of Claimant's cross-motion, however, each party failed to establish by a preponderance of the credible evidence their entitlement to judgment. Accordingly, those portions of the respective motion and cross-motion were denied.
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, 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 Defendant's motion papers, counsel's affidavit in support of the motion and exhibits attached thereto, Claimant's counsel's affirmation in opposition and exhibit attached, and the Court's Decision upon the original motion, and upon due deliberation, the motion for reargument is denied as Defendant 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) and the motion for renewal is denied as Defendant 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 it, 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, Defendant's motion is denied.
June 30, 2011
Albany, New York
CHRISTOPHER J. McCARTHY
Judge of the Court of Claims
The following papers were read and considered by the Court on Defendant's motion for reargument and renewal:
Papers Numbered
Notice of Motion, Affidavit in Support
& Exhibits attached 1
Affirmation in Opposition & Exhibit attached 2
Filed Papers: Claim, Answer