New York State Court of Claims

New York State Court of Claims

LESANE v. THE STATE OF NEW YORK, #2002-009-009, Claim No. 102912, Motion No. M-64273


Synopsis


Claimant's motion seeking leave to re-argue a summary judgment motion was denied.

Case Information

UID:
2002-009-009
Claimant(s):
JAMES LESANE
Claimant short name:
LESANE
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
102912
Motion number(s):
M-64273
Cross-motion number(s):

Judge:
NICHOLAS V. MIDEY, JR.
Claimant's attorney:
JAMES LESANE, Pro Se
Defendant's attorney:
HON. ELIOT SPITZER
Attorney General
BY: Joel L. Marmelstein, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant's attorney:

Signature date:
February 21, 2002
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant seeks leave to re-argue a prior motion for summary judgment.

The following papers were considered by the Court in connection with this motion:
Notice of Motion, Affidavit in Support, with Exhibits 1,2


Affidavit in Opposition 3

Reply Affidavit, with Exhibit 4


Letter from Claimant dated December 7, 2001 5

In his prior motion (Motion No. M-63687), claimant sought an order granting him summary judgment in this action seeking damages for assault and trespass allegedly committed by Correction Officer R. Dietterich. In its Decision and Order[1], this Court determined that significant and material issues of fact existed, thereby precluding summary judgment. Specifically, the Court found that the sworn responses of Correction Officer Dietterich to claimant's First Set of Interrogatories specifically denied the allegations made by claimant in his claim, thereby creating factual issues which could only be resolved at trial.

In this motion seeking re-argument, claimant contends that Correction Officer Dietterich lied in one of his responses to the interrogatories, thereby bringing into question his credibility and therefore, in essence, claimant requests that the Court disregard all responses made by Correction Officer Dietterich.

As claimant is well aware[2], a motion for re-argument is addressed to the discretion of the Court, and is designed to afford a party an opportunity to establish that the Court overlooked or misapprehended relevant facts or misapplied the controlling principle of law (Schneider v Solowey, 141 AD2d 813; Foley v Roche, 68 AD2d 558).

Rather than establishing his claim for summary judgment, in his arguments in support of this motion claimant has instead emphasized the fact that material issues of fact exist, and that it will be necessary for the Court to consider the testimony, demeanor, and credibility of all witnesses at a trial of this claim to resolve these disputed issues.

Accordingly, the Court finds that it properly applied the controlling principle of law and did not misapprehend any relevant facts in its decision on the original motion for summary judgment. Claimant's motion for re-argument must therefore be denied.

Accordingly, it is

ORDERED, that Motion No. M-64273 is hereby DENIED.


February 21, 2002
Syracuse, New York

HON. NICHOLAS V. MIDEY, JR.
Judge of the Court of Claims




[1] See Decision and Order to Motion No. M-63687, dated October 11, 2001, filed October 22, 2001.
[2] Claimant has previously, without success, sought leave before this Court to re-argue a prior motion. See Decision and Order to Motion No. M-63411, dated September 6, 2001, filed September 20, 2001.