2. Affirmation in Opposition of Carol A. Cocchiola, Assistant Attorney
3. Filed Papers: Claim; Answer
This claim, which is based on allegations that employees of the Department of
Correctional Services (DOCS) committed medical malpractice and other wrongs
against Claimant, has been the subject of several earlier motions. In August
1999, I dismissed the claim on the ground that Claimant failed to serve a copy
of the claim on Defendant (Decision and Order filed August 18, 1999, Motion Nos.
M-59696 and CM-59795, Patti, J.). In opposition to the State's motion to
dismiss, Claimant stated that he had mailed -- by certified mail, return receipt
requested -- a single envelope containing both a notice of intention and a copy
of the claim and that it had been received by the office of the Attorney General
on November 25, 1998. The "green card" establishing receipt of that envelope
was submitted with his affidavit. Because the claim that was filed with the
Court was verified on November 28th, three days after the date of purported
service of the copy, and because, according to Claimant's own affidavit of
service, the copy of the claim had been mailed to the Attorney General on
November 29th, I concluded that, as a matter of law, the certified mail article
that was received by the Attorney General on November 25th did not contain the
Claimant then moved for reconsideration, asking that I consider a submission
which he asserted had been sent to the Court in July 1999, but which had not
been listed among the papers considered on the August 1999 motion. In this
document, entitled "Reply to Answer," Claimant explained that his original
assertion had been in error and that the mailing received by the Attorney
General on November 25, 1998 contained only the notice of intention. The claim,
he now stated, had actually been placed in the mail by him on November 29th, but
was held up by the staff of the mail room at Southport Correctional. I directed
Defendant to produce the mail room records that Claimant requested to prove his
contentions, but those records contained no information to suggest either that a
document was mailed to the Attorney General on November 29th or that Claimant
had attempted to mail such a document on that date. In the continued absence of
any proof that Claimant served his claim on the State by certified mail, return
receipt requested (or in any other fashion), I declined to modify my original
Claimant subsequently moved before Presiding Judge Susan Phillips Read for an
order vacating my August 1999 decision and order. That motion was denied on the
ground that, pursuant to CPLR 5015(a), a request for such relief must be
addressed to the court that rendered the order (Decision and Order, Motion No.
M-62827, filed February 28, 2001, Read, P.J.).
By the instant motion, which Claimant styles as one to "reargue, reopen or
consolidate," Claimant again seeks to overturn the ruling made in August 1999
or, alternatively, to revive the Court of Claims action and to consolidate it
with a pending Federal action. The time in which a motion for renewal or
reargument may be made has long since passed (see, CPLR 2221)so
that branch of the motion must be denied. In addition, this Court has no
jurisdiction over any action or proceeding that has been commenced in Federal
Court and, thus, could not effect such a consolidation, even if Claim No.
99412-A had not been dismissed.
Claimant's motion is denied.