Matter of Government Empls. Ins. Co. v. De Liriano
This text of 2025 NY Slip Op 30037(U) (Matter of Government Empls. Ins. Co. v. De Liriano) is published on Counsel Stack Legal Research, covering New York Supreme Court, New York County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
Matter of Government Empls. Ins. Co. v De Liriano 2025 NY Slip Op 30037(U) January 6, 2025 Supreme Court, New York County Docket Number: Index No. 654945/2023 Judge: John J. Kelley Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. INDEX NO. 654945/2023 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 01/06/2025
SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. JOHN J. KELLEY PART 56M Justice ---------------------------------------------------------------------------------X INDEX NO. 654945/2023 In the Matter of MOTION DATE 08/27/2024 GOVERNMENT EMPLOYEES INSURANCE COMPANY, MOTION SEQ. NO. 002 Petitioner,
-v- DECISION + ORDER ON ROSA PONS DE LIRIANO, MOTION
Respondent. ---------------------------------------------------------------------------------X
The following e-filed documents, listed by NYSCEF document number (Motion 002) 15, 16, 17, 18, 19, 20, 21 were read on this motion to/for REARGUMENT/RECONSIDERATION .
In this proceeding pursuant to CPLR 7503 to stay arbitration of a claim for uninsured
motorists benefits, the petitioner moves, by notice of motion incorrectly denominated as one for
leave to reargue, for leave to renew the petition (CPLR 2221[e]), which had been denied in a
decision, order, and judgment dated June 28, 2024. Although the respondent does not oppose
the motion, the motion nonetheless is denied.
As the Appellate Division, First Department, has explained,
“[a] motion for leave to reargue pursuant to CPLR 2221 is addressed to the sound discretion of the court and may be granted only upon a showing ‘that the court overlooked or misapprehended the facts or the law or for some reason mistakenly arrived at its earlier decision’”
(William P. Pahl Equip. Corp. v Kassis, 182 AD2d 22, 27 [1st Dept 1992], quoting Schneider v
Solowey, 141 AD2d 813, 813 [2d Dept 1988]; see Matter of Setters v AI Props. & Devs. (USA)
Corp., 139 AD3d 492, 4492 [1st Dept 2016]). The petitioner is not arguing here that the court
overlooked or misapprehended any facts or law that it actually submitted in connection with the
initial petition. Rather, it bases the current motion on purported facts that had not previously
654945/2023 GOVERNMENT EMPLOYEES INSURANCE COMPANY vs. DE LIRIANO, ROS PONS Page 1 of 4 Motion No. 002
1 of 4 [* 1] INDEX NO. 654945/2023 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 01/06/2025
been presented to the court, namely a printout of a United States Postal Service (USPS) web
page that tracked a particular delivery. That printout had not been submitted in connection with
the petitioner’s first application. Hence, the petitioner’s motion here is, in fact, a motion for leave
to renew, since such a motion “‘shall be based upon new facts not offered on the prior motion
that would change the prior determination or shall demonstrate that there has been a change in
the law that would change the prior determination’” (McLaughlin v Snowlift, Inc., 214 AD3d 720,
721 [2d Dept 2023], quoting CPLR 2221[e][2]; see Melcher v Apollo Med. Fund Mgt., LLC, 105
AD3d 15, 23 [1st Dept 2013]; Dinallo v DAL Elec., 60 AD3d 620, 621 [2d Dept 2009]; American
Audio Serv. Bur. Inc. v. AT & T Corp., 33 AD3d 473, 476 [1st Dept 2006]). A party seeking
leave to renew must provide a reasonable justification for failing to submit the purportedly new
evidence on the initial application (see Leighton v Lowenberg, 125 AD3d 427, 427-428 [1st Dept
2015]; Onglingswan v Chase Home Fin., LLC, 104 AD3d 543, 544 [1st Dept 2013]).
As this court explained it in the June 28, 2024 order and judgment, pursuant to CPLR
7503(c), “an application to stay arbitration must be made by the party served within twenty days
after service upon him of the notice or demand, or he shall be so precluded.” “It is well settled
that the time limitation prescribed by CPLR § 7503(c) is jurisdictional, and, absent special
circumstances, courts have no jurisdiction to consider an untimely application” (Matter of
Metropolitan Property & Cas. Ins. Co. v Coping, 179 AD2d 499, 500 [1st Dept 1992]).
“‘This statutory time period is to be strictly construed’” (Matter of GEICO Gen. Ins. Co. v Glazer,
173 AD3d 499, 499 [1st Dept 2019], quoting Gold Mills v Pleasure Sports, 85 AD2d 527, 528,
[1st Dept 1981]). “‘[A] court’s lack of subject matter jurisdiction is not waivable, but may be
[raised] at any stage of the action, and the court may, ex mero motu [on its own motion], at any
time, when its attention is called to the facts, refuse to proceed further and dismiss the action’”
(Financial Indus. Regulatory Auth., Inc. v Fiero, 10 NY3d 12, 17 [2008], quoting Matter of Fry v
Village of Tarrytown, 89 NY2d 714, 718, [1997]; see Editorial Photocolor Archives v Granger
Collection, 61 NY2d 517, 523 [1984]; Lacks v Lacks, 41 NY2d 71, 75 [1976] [“It is blackletter law 654945/2023 GOVERNMENT EMPLOYEES INSURANCE COMPANY vs. DE LIRIANO, ROS PONS Page 2 of 4 Motion No. 002
2 of 4 [* 2] INDEX NO. 654945/2023 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 01/06/2025
that a judgment rendered without subject matter jurisdiction is void, and that the defect may be
raised at any time and may not be waived”]; VNB N.Y., LLC v Y.M. Intercontinental Gem Corp.,
154 AD3d 903, 906 [2d Dept 2017]). “A plaintiff asserting subject matter jurisdiction has the
burden of proving by a preponderance of the evidence, that it exists” (Holmes v United States,
2005 WL 2298159, *2, 2005 US Dist LEXIS 20648, *6-7 [SD NY, Sept. 19, 2005] [citations and
internal quotation marks omitted]). As such, the petitioner had the initial burden of establishing
that the court had subject matter jurisdiction to consider the petition, which the petitioner now
contends is the case, based on its new assertion that its commencement of this proceeding on
October 9, 2023 was within 20 days after it received the demand for arbitration on September
21, 2023 (see Knickerbocker Insurance Co. v Gilbert, 28 NY2d 57, 63-64 [1971]).
The petitioner, however, has failed to provide a reasonable justification for failing to
submit, with its initial application, the purportedly new evidence of the date of its receipt of the
demand. Furthermore, although the petitioner alleged in the petition that it received the demand
on September 21, 2023, the petition was verified only by the petitioner’s attorney, who did not
claim to have personal knowledge of the date of receipt. Moreover, the document that it now
submits simply provides a USPS tracking number and indicates a date on which the petitioner
received correspondence pertaining to that tracking number. The document does not, by itself,
establish that the enumerated tracking number pertains to the envelope containing the
respondent’s demand for arbitration. Nor does the petitioner submit an affirmation or affidavit
from an employee with knowledge that this tracking document pertains to the receipt of the
demand for arbitration, or even an employee with knowledge of the petitioner’s mailroom
protocol. Rather, it submits only an attorney’s affirmation which asserts, without more, that the
petitioner received the respondent’s demand for arbitration on September 21, 2024. This is
insufficient to support a motion for leave to renew. For these reasons, the petitioner’s motion
must be denied.
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