Dellocono v. State

244 A.D.2d 521, 665 N.Y.S.2d 583

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 24, 1997
• Docket: Claim No. 91890
• Status: Published

Opinion

—In a claim to recover damages for personal injuries, the claimant appeals from an order of the Court of Claims (Mega, J.), dated June 27, 1996, which denied his motion denominated as one for renewal and reargument of the defendant’s prior motion to dismiss the claim or, alternatively, for leave to serve a late claim pursuant to Court of Claims Act § 10 (6).

Ordered that the appeal from so much of the order as denied that branch of the motion which was characterized as one for renewal and reargument of the defendant’s prior motion to dismiss the claim is dismissed; and it is further,

Ordered that the order is affirmed insofar as reviewed; and it is further,

Ordered that the respondent is awarded one bill of costs.

The claimant’s motion, characterized as one for renewal and reargument of the defendant’s prior motion to dismiss the claim, was, in actuality, a motion for reargument since it was not based upon new facts which were unavailable at the time the claimant submitted his original opposition to the motion to dismiss (see, Wodecki v Carty, 167 AD2d 398). No appeal lies from an order denying a motion for reargument (see, Mucciola v City of New York, 177 AD2d 553).

We agree with the Court of Claims that the claimant has not met any of the criteria set forth in Court of Claims Act § 10 (6). Therefore, his alternative request for leave to serve a late claim was properly denied. Rosenblatt, J. P., Ritter, McGinity and Luciano, JJ., concur.