5, 6 Filed Papers: Claim, Decision and Order in Motion No. M-64696
Upon the foregoing papers, the motion to reargue is granted and the claim is
restored to the calendar.
By Decision and Order signed March 18, 2002, in Motion No. M-64696, I dismissed
the claim herein on the ground that Claimant was unable to demonstrate that he
had ever served the claim upon Defendant (22 NYCRR §206.5[a]), his
affidavit of service to the contrary. I note as well that Claimant had
defaulted on the earlier motion and I am advised that Claimant on May 6, 2002,
has appealed that decision.
The instant motion is in essence a motion to reargue, although Claimant
disputes that characterization, asserting that the dismissal of the claim in the
earlier motion was obtained by "fraud, deceit and perjury by OAG." Claimant
suggests the earlier dismissal and his default on that motion were all the
result of fraud, deceit and perjury, and seeks to vacate that dismissal.
Claimant confusingly refers to motions, etc., dealing with Claim No. 101829
(Paragraph 2). He also complains about the Department of Correctional Services
(DOCS) having impliedly delayed mail and motions from him dated March 21, 2002,
and April 2, 2002 (Paragraphs 4 and 5). I find this discussion irrelevant as
Motion No. M-64696 was served upon Claimant by mail on February 7, 2002, and was
returnable on March 13, 2002, all before any discussion in Claimant's Paragraphs
4 and 5. Claim No. 102408 was filed on May 4, 2000. Claimant proffers that it
was served upon the Defendant by certified mail, return receipt requested.
Whether characterized as a motion to reargue, or one for fraud, deceit, etc.,
the remedy sought here by Claimant is to restore Claim No. 102408 to the active
It appears without question that the Defendant, when served with the document
to which the Clerk later assigned Claim No. 102408, apparently misinterpreted
the nature of that document, believing it to be an amendment of the earlier
claim (Claim No. 101829, filed on January 24,
Thus the Defendant thereupon filed (on
May 15, 2000) and served an Amended Verified Answer utilizing No. 101829 as the
A review of the Verified Answer and the Amended Verified Answer reflects and
confirms such confusion. The Verified Answer specifically refers to those
sections of the claim entitled "Intentional Conduct of Corrections Officials"
and "Negligence/Intentional Conduct of Corrections Counselors", etc., including
addressing the last numbered paragraph of that claim, entitled "Damages",
referenced as items or paragraphs 11(a) and 11(b). This is consistent with the
allegations and paragraph numbers of Claim No. 101829.
The Amended Verified Answer responds to differing specific sections/paragraphs
of Claim No. 102408, including Paragraph 4 and its subparagraphs entitled
"Jurisdiction"; Paragraph 5 and its subparagraphs entitled "Facts", and
Paragraph 6 and its subparagraphs entitled "The Damage." This is consistent
with the allegations and paragraph numbers of Claim No. 102408.
It is quite clear to me that the Defendant inadvertently responded to a new
claim as if were the amendment of an existing claim. I had previously dismissed
Claim No. 102408 in Motion No. M-64696, filed on March 28, 2002, a motion to
which the Claimant failed to offer any timely opposition. However, I believe
that this underlying confusion has led to a lot of unnecessary and convoluted
motion practice, dealing with both claims.
Fairness requires that this inadvertence and confusion be clarified. Thus, I
have determined that Claim No. 102408 should be restored to the calendar, and
this motion, to that extent, is granted.
The most orderly and practical solution to this morass is the following: