New York State Court of Claims

New York State Court of Claims

CARTER v. THE STATE OF NEW YORK, #2001-013-009, Claim No. 99412-A, Motion No. M-63292


Claimant's second motion to reargue a prior decision of the Court is denied as untimely, and his motion to consolidate a Court of Claims action with a Federal proceeding is denied as falling outside the jurisdiction ro power of this court.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant's attorney:
Defendant's attorney:
Attorney General of the State of New York
BY: CAROL A. COCCHIOLAAssistant Attorney General
Third-party defendant's attorney:

Signature date:
June 25, 2001

Official citation:

Appellate results:

See also (multicaptioned case)


On April 18, 2001, the following papers were read on Claimant's motion to "reargue or reopen or consolidate" a prior order:
  1. Notice of Motion and Supporting "Affirmation" of Kenny Carter, pro se
2. Affirmation in Opposition of Carol A. Cocchiola, Assistant Attorney General

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 claim.

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 order.

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.

June 25, 2001
Rochester, New York

Judge of the Court of Claims