The People of
the State of New York,
against
Mark Garraway, Defendant.
|
2014BX008596
The People - Robert T. Johnson, District Attorney, Bronx County by Elise
G. Benninghofen, Assistant District Attorney
Defendant — The Legal Aid Society by Lily Goetz
Armando Montano, J.
The motion by the People for an order, pursuant to CPLR 2221(d), granting leave to
reargue this Court's February 2, 2015 decision and order dismissing the accusatory
instrument on speedy trial grounds is hereby denied.
By decision and order dated February 2, 2015, this Court granted defendant's
motion to dismiss on speedy trial grounds. This Court determined that the People's
statements of readiness filed on April 10, 2014 and September 12, 2014 were illusory
and therefore, ineffective in tolling the speedy trial clock.
Upon consideration of the parties' submissions, the People's request for leave
to reargue this Court's February 2, 2015 decision and order is denied.
The People's motion for leave to reargue is defective in several respects. First, the
People have failed to submit a copy of defendant's initial moving papers and their papers
in opposition as required by CPLR 2214(c). CPLR 2214(c) reads in pertinent part
that:
Each party shall furnish to the court all papers served by him. The moving
party shall furnish at the hearing all other papers not already in the possession of the
court necessary to the consideration of the questions involved Only papers served in
accordance with the provisions of this rule shall be read in support of, or in opposition to,
the motion, unless the court for good cause shall otherwise direct.
"There is no authority for compelling [a Court] to consider papers which
were not submitted in connection with the motion on which it is ruling; indeed, under
CPLR 2214(c), the Court may refuse to consider improperly submitted papers." Loeb
v. Tanenbaum, 124 AD2d 941 (3d Dept. [*2]1986);
see also, Yick Tak Cheung v. City of New York, 2014 NY LEXIS 1627
(Sup Ct, NY County, April 7, 2014). As the People are well aware, this Court does not
retain motion papers after a decision is rendered and therefore, this Court "should not be
compelled to retrieve the clerk's file in connection with its consideration of subsequent
motions." Sheedy v. Pataki, 236 AD2d 92, 97 (3d Dept. 1997) lv denied
91 NY2d. 805 (1998); see also, Biscone v. JetBlue Airways, Corp., 103 AD3d 158, 179 (2d
Dept. 2012). In accordance with this Court's prior decision and order, this case was
dismissed and the file was sealed. It is not the Court's responsibility to locate and retrieve
sealed files in order to render a decision on any motion. In a motion to reargue, as the
movant, the onus is upon the People to submit all prior papers submitted with the original
motion in order for the Court to determine whether to grant the relief requested.
Culpepper v. City of New York, 2014 NY Misc. LEXIS 4513 (Sup Ct, Bronx
County, Sept. 22, 2013). Notwithstanding the foregoing, this Court did retrieve this file
in order to render the instant decision.
Second, this Court finds that the instant motion is untimely. A motion for leave to
reargue must be made "within thirty days after service of a copy of the order determining
the prior motion and written notice of its entry." CPLR 2221(d)(3). Notably, a motion is
made when it is served not filed with the Court. CPLR 2211. On February 9, 2015,
defendant filed with the Court and served on the People a copy of the prior decision and
order with notice of entry. Although the People filed the instant motion within 30 days of
service of a copy of the decision and order with notice of entry, they have failed to timely
serve the motion.
A notice of motion is required, inter alia, to specify the time and
place of the hearing on the motion." CPLR 2214(a). In addition, CPLR 2214(b) provides
that:
A notice of motion and supporting affidavits shall be served at least eight
days before the time at which the motion is noticed to be heard. Answering affidavits
shall be served at least two days before such time. Answering affidavits and any notice of
cross-motion, with supporting papers, if any, shall be served at least seven days before
such time if a notice of motion served at least sixteen days before such time so demands;
whereupon any reply or responding affidavits shall be served at least one day before such
time.
Where a motion is served by mail, five days are added to the prescribed time
period. CPLR 2103(b)(2). Here, the People did not reserve their right to submit reply
papers and they served the instant motion by mail. Therefore, the instant motion should
have been served at least 13 days before the return date of March 5, 2015.
The sole affidavit of service submitted with the People's motion indicates
that on March 4, 2015, a copy of the instant motion was served on Lily Goetz at the
office of the Bronx Defenders located at 360 East 161st Street, Bronx, New York 10451.
Not only were the motion papers served only one day before the return date in
contravention of CPLR 2214(b), but the papers were also mailed to the wrong address.
Ms. Goetz is not affiliated with the Bronx Defenders. Rather, she is associated with the
Legal Aid Society located at 260 East 161st Street, Bronx, New York 10451. Moreover,
the Bronx Defenders have never represented defendant in this action. In her affirmation
in opposition, defense counsel asserts that she received the instant motion by mail on
April 3, 2015. Since the People failed to submit a second affidavit of service indicating
that the motion was served to the proper address, it is unclear as to the exact date on
which service was made on defense counsel. Regardless of the date on which defense
counsel was served, it was clearly effectuated beyond the 30 days prescribed in CPLR
2221(d)(3). [*3]"Where a notice of motion is served
within less time prior to its return date than prescribed, the court has, upon the objection
of the respondent appearing specially, no jurisdiction to entertain it." Thrasher v.
United States Liability Ins. Co., 45 Misc 2d 681, 682 (Sup Ct, NY County 1965);
see also, Golden v. Golden, 128 AD2d 672 (2d Dept. 1987). Defendant
unequivocally objects to the short service of the instant motion. As such, this Court does
not have jurisdiction to entertain the motion.
Even if this Court had the requisite jurisdiction, the People's motion for
leave to reargue would still be denied as the People have failed to demonstrate that this
Court misapprehended or overlooked a fact or applicable law. CPLR 2221(b) provides
that a motion for leave to reargue "shall be based upon matters of fact or law allegedly
overlooked or misapprehended by the court in determining the prior motion, but shall not
include any matters of fact not offered on the prior motion." " 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
any controlling principle of law. Its purpose is not to serve as a vehicle to permit the
unsuccessful party to argue once again the very questions previously decided.'"
Mangine v. Keller, 182 AD2d 476, 477 (1st Dept. 1992), quoting Foley v.
Roche, 68 AD2d 558, 567 (1st Dept. 1979).
In support of reargument, the People impermissibly submits a number of
exhibits which were not submitted with their original opposition papers. Moreover, the
People have espoused the same arguments here as they did previously on the original
motion.
Accordingly, the People's motion for an order, pursuant to CPLR 2221(d), granting
leave to reargue this Court's February 2, 2015 decision and order is denied.
My Court Attorney is hereby ordered to serve a copy of this decision and order by
regular first-class mail, within five (5) days of the date of this decision and order, upon
Assistant District Attorney Elise G. Benninghofen, the Office of the Bronx County
District Attorney, 198 East 161st Street, Bronx, New York 10451, and Lily Goetz, Esq.,
counsel for defendant, the Legal Aid Society, 260 East 161st Street, 10th Fl., Bronx,
New York 10451.
This constitutes the decision and order of this Court.
Dated:May 29, 2015
Bronx, New York
_______________________________
Hon. Armando Montano