People v Dorato

[*1] People v Dorato 2012 NY Slip Op 51940(U) Decided on October 12, 2012 Just Ct Of Town Of Kinderhook, Columbia County Dellehunt, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on October 12, 2012
Just Ct of Town of Kinderhook, Columbia County

People of the State of New York,

against

Michael J. Dorato, Defendant.



XXXXX



PAUL CZAJKA, ESQ.

Columbia County District Attorney

325 Columbia Street

Suite 260

Hudson, New York 12534

FOR THE DEFENDANT:

Michael J. Dorato

Defendant Pro Se

155 Tunnel Hill Road

Canaan, New York 12029

David A. Dellehunt, J.

The Columbia County District Attorney Paul Czajka (hereinafter "the DA") moves by Notice of Motion dated September 25, 2012, and returnable on October 2, 2012, for an order recusing the Court from presiding over the instant proceeding and for an order staying all proceedings herein until the Court issues a decision on the motion. The instant motion is one of 32 separate motions, brought by Notice of Motion, pertaining to cases scheduled to be heard in the Kinderhook Town Court on October 2, 2012, all seeking the same relief and relying on [*2]identical submissions.[FN1]

This Court denied the DA's motion for recusal, in writing, on two previous occasions; the latest Decision and Order was issued on September 26, 2012. People v. Chai, 2012 WL 4492264, 2012 NY Slip Op. 51870(U) (2012). Subsequent to that date, on October 1, 2012, the DA filed a Supplemental Affirmation seeking the following relief: (1) that the Court consider the DA's Supplemental Affirmation as a supplement to the September 25, 2012 motions to recuse, (2) that the DA be permitted to withdraw that portion of the September 25, 2012 motions that seek a stay, and (3) that the Court identify to the DA all of those defendants who are ill or pregnant.[FN2] The defendant failed to submit written opposition to the motion.

The relief requested in the instant motion is identical,[FN3] save for the request for the Court to identify those defendants that are either ill or pregnant.[FN4] Thus, although not characterized as such, the DA's motion shall be considered a motion to reargue and renew. Since the Criminal Procedure Law does not permit the reconsideration of motions, the Court must, therefore, refer to CPLR 2221 for guidance when considering motions affecting a prior order. See, People v. Duquette, 152 Misc 2d 239, 240 (1991).

On a motion for reargument, the movant must show that the Court has overlooked or misapprehended the facts or the law, or that it has mistakenly arrived at its decision. Viola v. City of New York, 13 AD3d 439, 440 (2nd Dept. 2004) lv. den. 5 NY3d 706 (2005); see, Carrillo v. PM Realty Group, 16 AD3d 611(2nd Dept. 2005); Loris v. S & W Realty Corp., 16 AD3d 729, 730 (3rd Dept. 2005); CPLR 2221(d)(2). Generally, a motion to reargue is based on the submissions for the original motion, with no new facts, which allows the movant to demonstrate [*3]to the Court that its initial determination was in error. See, Matter of Burack, 150 AD2d 568 (2nd Dept. 1989); cf. Matter of Hunter v. New York State Bd. of Elections, 32 AD3d 662, 663 (3rd Dept. 2006). Reargument is not designed to permit the unsuccessful party another opportunity to merely argue again issues previously decided, or to present arguments different from those asserted on the original motion. See, William P. Pahl Equipment Corp. v. Kassis, 182 AD2d 22 (1st Dept. 1992); Foley v. Roche, 68 AD2d 558, 567 (1st Dept. 1979); see also, Mangine v. Keller, 182 AD2d 476 (1st Dept. 1992).

A motion to renew, on the other hand, is based on evidence which was existing at the time of the prior motion, but which was not brought before the Court at that time. On a motion to renew, the movant must supply a valid excuse for not submitting the additional evidence on the original motion. See, Champlain Valley Electric Supply Co., Inc., v. Miller, 89 AD2d 1036 (3rd Dept. 1982); Les Strong, Inc. v. County of Broome, 88 AD2d 1037 (3rd Dept. 1982); CPLR 2221(e)(2),(3).

Here the Court is not convinced that it overlooked or misapprehended the facts or the law, or that it mistakenly arrived at its decision, warranting the denial of the DA's motion insofar as it seeks reargument. Likewise, the DA has neither submitted any new evidence that was not submitted on the prior motion nor presented a valid excuse for failing to submit the same, warranting the denial of the motion insofar as it seeks renewal. See, Bernthon v. Utica Mut. Ins. Co., 279 AD2d 728, 730 (3rd Dept. 2001). The DA's other requests for relief are improper. By reason of the foregoing, the DA's motion is denied in all respects.

This opinion shall constitute the Decision and Order of the Court.

ENTER.SO ORDERED.

October 12, 2012_________________________ Kinderhook, New YorkDavid A. Dellehunt

Kinderhook Town Justice Footnotes

Footnote 1:Based upon the papers before the Court, it is unclear whether the DA complied with CPLR 2214(b) with respect to the Notice of Motion.

Footnote 2:The Affidavit of Service indicates that the DA's Supplemental Affirmation was served upon the defendants by regular mail on the return date of the motion. The DA also subpoenaed witnesses to appear for trial on the same date that the instant motion was made returnable before the Court.

Footnote 3: The DA previously sought the Court's recusal, by letter motion, from any and all Criminal and Vehicle and Traffic matters in Columbia County, and thereafter filed 80 separate motions, by Order to Show Cause, on identical grounds seeking the same relief. After failing to effectuate service on 70 of said defendants and failing to file additional motions on the remaining cases seeking the same relief, the DA requested this Court to decide only those motions that were duly served, and have said decisions apply to any cases where the motions were either not properly filed or served. Although the Court did not grant the DA's request, the Court's findings in People v. Chai, supra. preclude further motions, based upon identical arguments, from being considered under the doctrine of issue preclusion. See, American Ins. Co. v. Messinger, 43 NY2d 184, 190 (1977).

Footnote 4:The DA's request for information relative to ill or pregnant defendants is improper. Cf. Health Insurance Portability and Accountability Act, PL 104-191, 1996 HR 3103; 45 CFR 164.512.