New York State Court of Claims

New York State Court of Claims

RHODES v. THE STATE OF NEW YORK, #2001-019-578, Claim No. 94100, Motion No. M-64070


Synopsis


Claimant's "motion for consideration" to set aside prior Decision & Order is denied.

Case Information

UID:
2001-019-578
Claimant(s):
TONY RHODES
Claimant short name:
RHODES
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
94100
Motion number(s):
M-64070
Cross-motion number(s):

Judge:
FERRIS D. LEBOUS
Claimant's attorney:
IRA M. THOMAS, ESQ.
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERAL
BY: James E. Shoemaker, Assistant Attorney General, of counsel
Third-party defendant's attorney:

Signature date:
December 3, 2001
City:
Binghamton
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant has filed this "Motion To Reconsider" relative to this Court's prior Decision & Order in favor of the State of New York on the issue of liability.[1] (Rhodes v State of New York, Ct Cl., August 23, 2001, Lebous, J., Claim No. 94100). The State of New York (hereinafter "State") opposes the motion.


The Court has considered the following papers in connection with this motion:
  1. DECISION, Lebous, J., Claim No. 94100, filed August 23, 2001.
  2. Notice of Motion No. M-64070, dated September 17, 2001, and filed September 18, 2001.
  3. Affirmation of Ira M. Thomas, Esq., in support of motion, dated September 17, 2001.
  4. Affirmation of James E. Shoemaker, AAG, in opposition to motion, dated October 4, 2001, and filed October 9, 2001.
The underlying facts were set forth in greater detail in this Court's prior Decision & Order dismissing this Claim. Generally, however, Claimant was stabbed while in a recreation area at Woodbourne Correctional Facility on November 6, 1995, resulting from a fight between two groups of inmates. This Court determined that Claimant had failed to establish a prima facie case of negligence against the State and the Claim was dismissed.


Claimant has described this motion as one seeking "reconsideration". However, it is unclear whether Claimant is actually seeking reargument or renewal pursuant to CPLR 2221; a motion to set aside a verdict pursuant to 4404 (b); or a motion to vacate the judgment pursuant to CPLR 5015 (a). A motion for reargument pursuant to CPLR 2221 (d) is "[d]esigned to afford a party an opportunity to establish that the court overlooked or misapprehended the relevant facts, or misapplied any controlling principle of law" without raising any new proof. (Foley v Roche, 68 AD2d 558, 567). Based upon Claimant's papers it appears that this motion is actually one for reargument pursuant to CPLR 2221 (d) inasmuch as Claimant contends that the Court "overlooked an important piece of testimony".[2] (Affirmation of Ira M. Thomas, Esq., ¶ 2).


Here, Claimant argues that the Court overlooked the "[s]erious tension still lingering from the effects of the Nelson incident" such that "[h]ad the correction officer even gone back briefly to check on the recreation area, he too what [sic] have readily observed the existence of the obvious tension and taken steps to squelch the tension brewing." (Affirmation of Ira M. Thomas, Esq., ¶ 6 [emphasis omitted]). Claimant also argues that this Court should have found an "especially dangerous situation" existed due to the prior Nelson incident and that the State had an opportunity to prevent this assault. Claimant's arguments offer nothing that warrants reconsideration of this Court's prior Decision and Order as they are essentially restatements of his prior arguments. Accordingly, Claimant's motion is denied.


Accordingly, in view of the foregoing, it is ORDERED that Claimant's "Motion for Consideration", Motion No. M-64070, is DENIED.


December 3, 2001
Binghamton, New York

HON. FERRIS D. LEBOUS
Judge of the Court of Claims




[1]The trial of this Claim was heard in the Binghamton District on June 6, 2001.
[2]Parenthetically, the Court notes that this motion could not be viewed as a motion for renewal as no new facts are alleged. (CPLR 2221 [e]). Moreover, to the extent that this motion could also be considered as a motion pursuant to CPLR 4404 (b) it would be denied for the same reasons, namely that Claimant's post-trial affidavit merely reviews the same factual allegations and legal arguments previously rejected by this Court.