New York State Court of Claims

New York State Court of Claims

McCANTS v. THE STATE OF NEW YORK, #2000-001-067, Claim No. N/A, Motion No. M-62321


Synopsis


Claimant's motion seeking permission to reargue a prior motion in which this Court denied claimant's request for permission to file a late claim is granted.

Case Information

UID:
2000-001-067
Claimant(s):
ANDRE T. McCANTS
Claimant short name:
McCANTS
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK and NEW YORK STATE DIVISION OF PAROLE
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
N/A
Motion number(s):
M-62321
Cross-motion number(s):

Judge:
Susan Phillips Read
Claimant's attorney:
Andre T. McCants, Pro Se
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney GeneralBy: Glenn C. King, Esq., Assistant Attorney General, Of Counsel
Third-party defendant's attorney:

Signature date:
November 30, 2000
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

The following papers were read and considered on claimant's motion seeking permission to reargue a prior motion in which this Court denied claimant's request for permission to file a late claim pursuant to Court of Claims Act § 10 (6): Notice of Motion for Reargument, dated August 15 and filed September 5, 2000; Affidavit in Support of Andre T. McCants, pro se, sworn to August 29 and filed September 5, 2000; Petition for Reargument, dated August 21 and filed September 5, 2000; Affirmation in Opposition of Glenn C. King, Esq., AAG, dated September 20 and filed September 22, 2000; Claimant [sic] Notice of Motion to Respond to Defendant's Motion in Opposition to Claimant [sic] Motion for Reargument, received and filed October 2, 2000, and Notice of Motion to Respond to Defendant's Motion in Opposition to Claimant [sic] Motion for Reargument, dated October 11, 2000 and received and filed October 16, 2000[1]; Notice of Motion (M-61784), undated and received May 26, 2000; Affidavit in Support of Andre T. McCants, pro se, dated May 7 and filed May 15, 2000, with annexed Proposed Claim (captioned "Claim"); and Affirmation in Opposition of Glenn C. King, Esq., AAG, dated June 7 and filed June 9, 2000.

The facts underlying this motion were set forth in this Court's prior decision and order filed August 10, 2000 as follows:
Andre T. McCants ("claimant") move[d] pursuant to section 10 (6) of the Court of Claims Act for permission to file a late claim alleging that he was falsely imprisoned by the Department of Correctional Services ("DOCS") in violation of Criminal Procedure Law § 410.91. In his proposed claim . . . claimant allege[d] that he was sentenced to parole supervision on April 30, 1999; transferred to a DOCS reception center on May 12, 1999; and transferred to the Willard Drug Treatment Campus on June 1, 1999, twenty days later.

CPL § 410.91 provides that when a court directs a sentence of parole supervision, the criminal defendant shall be remanded "for immediate delivery to a reception center . . . for a period not to exceed ten days" and thereafter placed under the immediate supervision of the State Division of Parole in a drug treatment campus for a period of ninety days prior to release. Claimant [sought] to recover $5,000.00 for the additional ten days for which he was confined to the DOCS reception center (McCants v State of New York, Ct Cl, unreported decision filed Aug. 10, 2000, Read, P. J., Motion No. M-61784).
The Court denied the motion because the proposed claim did not indicate that claimant had suffered any damages, even if he were held at the DOCS reception center for 20 days rather than 10, as he alleged. Claimant did not allege that he was held in excess of the total allowable period of confinement as a result, or that confinement at the reception center for more than 10 days delayed his date of eligibility for release, or was more severe than confinement at the drug treatment campus (id.).

Claimant brings this motion to reargue to cure the deficiencies pointed out by the Court in his earlier motion by "show [ing] that the delay caused some kind of damage to the claimant" (Affidavit in Support of Andre T. McCants, pro se, dated August 29 and filed September 5, 2000 ["McCants Aff."], ¶ 3). These damages, claimant alleges, consist of an extension of his release date to September 7, 1999 from what, he argues, should have been a release date of August 20, 1999[2] (McCants Aff., ¶ 4; Petition for Reargument, dated August 21 and filed September 5, 2000 ["Petition"], ¶¶ 5-7).[3] Defendant State of New York ("defendant" or "the State") opposes claimant's motion, contending that it raises matters not offered on the prior motion (see, CPLR 2221 [d] [2]) and that claimant's unsupported allegations are insufficient because he fails to offer any specifics as to when he was actually released (Affirmation in Opposition of Glenn C. King, Esq., AAG, dated September 20 and filed September 22, 2000 ["King Aff."], ¶¶ 3-6).

Claimant's papers do not establish that the Court "overlooked or misapprehended the relevant facts, or misapplied any controlling principle of law" (Foley v Roche, 68 AD2d 558, 567) on the prior motion, and thus provide no basis upon which to grant a motion to reargue (see, CPLR 2221 [d]; Spa Realty Assocs. v Springs Assocs., 213 AD2d 781, 783; Foley v Roche, supra). In any event, the Court considers this a motion to renew because claimant has offered "new facts not offered on the prior motion that would change the prior determination" (CPLR 2221 [e] [2]; see, Spa Realty Assocs. v Springs Assocs., supra, at 783).

Claimant's motion meets this requirement since the "new facts" alleged (i.e., a roughly two and one-half week delay in his release or eligibility for release on parole as a purported consequence of his alleged false imprisonment at the DOCS reception center) establishing that his proposed claim states a valid cause of action within the meaning of Court of Claims Act § 10 (6) (4) as generously interpreted in Matter of Santana v New York State Thruway Auth. (92 Misc 2d 1). A motion to renew, however, " ‘is not a second chance freely given to parties who have not exercised due diligence in making their first factual presentation' " (Matter of Barnes v State of New York, 159 AD2d 753, 754, lv dismissed 76 NY2d 935, quoting Matter of Beiny, 132 AD2d 190, 210, lv dismissed 71 NY2d 994). In addition to offering the new material, a party's moving papers "shall contain reasonable justification for the failure to present such facts on the prior motion" (CPLR 2221 [e] [3]).

Here, claimant attributes his belated proffer of "new facts" to inadvertence and the apparent absence of an opportunity prior to the Court's decision to counter defendant's counsel's observation that claimant had not alleged that any improper detention at the DOCS reception center delayed his parole release (Notice of Motion for Reargument, dated August 15 and filed September 5, 2000; Claimant [sic] Notice of Motion to Respond to Defendant's Motion in Opposition to Claimant [sic] Motion for Reargument, received and filed October 2, 2000; see also, Affirmation in Opposition of Glenn C. King. Esq., AAG, dated June 7 and filed June 9, 2000, ¶ 12). The Court finds that claimant, a pro se litigant, has thus provided an acceptable excuse and grants his motion to renew (see, Defeo v Defeo, 159 Misc 2d 490 [judge takes party's pro se status into consideration when assessing the validity of an excuse for not submitting relevant information on a prior motion]; see also, Bevona v Superior Maintenance Corp., 204 AD2d 136 [denial of motion to renew an abuse of discretion where party offers "new facts" redressing a specific omission pointed out by the court sua sponte in its original opinion]).

Next, the Court finds that the six factors in Court of Claims Act § 10 (6) weigh in favor of granting claimant's motion for permission to file a late claim. Claimant offered no acceptable excuse for his delay in filing the claim; however, the State necessarily maintains records establishing the precise dates of claimant's confinement at and release from the DOCS reception center and the Willard Drug Treatment Center in 1999 and thus has had sufficient notice and opportunity to investigate the essential facts and circumstances underlying the claim and has suffered no prejudice because of the delay in filing. Moreover, claimant does not have another available remedy and, as discussed previously, his claim appears meritorious.

Based upon the foregoing, the Court grants claimant's motion for permission to file a late claim. The Court further directs claimant to file and serve a claim identical to the Proposed Claim (captioned "Claim") annexed to the Affidavit in Support of Andre T. McCants, pro se, dated May 7 and filed May 15, 2000; and to file and serve this claim in conformity with the requirements of Court of Claim Act §§ 10 and 11 and 11-a within thirty (30) days after this Decision and Order is filed.


November 30, 2000
Albany, New York

HON. SUSAN PHILLIPS READ
Judge of the Court of Claims




[1]
These papers were both sent and received subsequent to the motion's return date of September 27, 2000. Although the Court may refuse to consider untimely submitted papers (see, Dominski v Firestone Tire & Rubber Co., 92 AD2d 704; cf., Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C2214.23, at 99-100), in this instance the Court has elected to exercise its discretion to consider these submissions.
[2]
In his affidavit, claimant states that his release date should have been August 20, 2000, which the Court assumes is a typographical error.
[3]
For convenience of reference, the Court added paragraph numbers to claimant's Petition for Reargument.