New York State Court of Claims

New York State Court of Claims

BENNETT v. STATE OF NEW YORK, #2002-018-139, Claim Nos. 103987, 103833, Motion Nos. M-64066, M-64154, M-64198


Synopsis


Claim No. 103987 had previously been dismissed by Order of Presiding Judge Susan P. Read, dated March 19, 2002. Motion No. M-64154 is denied, claimant's request for re-argument in insufficient.

Case Information

UID:
2002-018-139
Claimant(s):
DONALD BENNETT
Claimant short name:
BENNETT
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
103987, 103833
Motion number(s):
M-64066, M-64154, M-64198
Cross-motion number(s):

Judge:
DIANE L. FITZPATRICK
Claimant's attorney:
DONALD BENNETTPro Se
Defendant's attorney:
ELIOT SPITZER
Attorney General of the State of New York
By: JOEL L. MARMELSTEIN, ESQUIREAssistant Attorney General
Third-party defendant's attorney:

Signature date:
May 13, 2002
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision
Claimant has brought two motions. Motion No. M-64066 dated September 4, 2001, regarding claim numbers 103987[1]
and 103833[2], is entitled a "MOTION TO INCREASE AMEND [sic] CLAIM IN THE COURT OF CLAIM [sic]." It is almost impossible to tell what claimant is seeking by way of this motion. Defendant has interposed a response.
Motion No. M-64154 regarding claim number 103833 is entitled, "NOTICE OF MOTION OF CAUSE OF CLAIM." By this motion dated September 28, 2001, and filed October 1, 2001, claimant seems to seek a variety of relief. Defendant has not interposed a response to this motion which, pursuant to the affidavit of service, was served upon the attorney general's office by mail on September 28, 2001.
MOTION NO. M-64066
The documents submitted on this "motion" are entitled a "claim" and an "affidavit of service." The document labeled a "claim" has a caption which reflects Westchester County Jail Medical Department (Infirmary) as defendant. This Court has no jurisdiction over the Westchester County Jail Medical Department. It is unclear from these documents what relief claimant is seeking. Accordingly, the motion is DENIED.
MOTION NO. M-64154
By this motion, claimant seeks a variety of relief, including: compensatory damage in the amount of one million dollars against the Department of Correctional Services and the assistant attorney general who fought to have his claim dismissed, punitive damages, an order re-opening claim number 103833, a consideration by the Court of the facts of his case, as well as the fact that he did not receive a copy of the Court's decision until September 25, 2001, more than a month after the Court signed the decision dismissing claim number 103833, allegedly leaving him no time to appeal; consideration of the lies of certain individuals, and finally that the Court grant him relief under 42 U.S.C. §1983. In support of this motion, claimant has submitted the Notice of Motion of Cause of Claim, dated September 28, 2001, and a letter to the Chief Clerk of the Court of Claims dated October 1, 2001. In this letter, claimant advises the Clerk that he does not want to increase the ad damnum clause in his claim, he inquires as to the status of claim number 103833, he states that he would prefer for the claim to be postponed until he goes home, and finally, he requests consideration from the Court and that he be fully compensated for his suffering.

It is not clear that claimant served a copy of the motion upon the attorney general's office. The affidavit of service indicates the motion papers were allegedly mailed two days before the date of the cover letter which is attached to the notice of motion. Defendant did not interpose a response. Were the Court to assume that the motion was timely served and address the relief requested, the motion would be denied. Claimant seeks compensatory damages which are not awarded by motion. The claim also seeks monetary sanctions or costs against the State for moving to dismiss his claim; costs are not available against the State and claimant has not set forth any facts which would warrant the imposition of sanctions. (Court of Claims Act §27; Uniform Rules of Chief Administrator [22 NYCRR §130-1.1])

Claimant asks to "re-open" claim number 103833. Although not entirely clear, it seems that claimant is really making a request to reargue the prior motion.[3]
Claimant states, that it has been established that "complaint by placing plaintiff/said petitioner in violation of his medical help which D.O.C. by law has the rights to acompany [sic] any and everyone health conditions being incarcerated by the State of New York un-voluntary." (Notice of Motion, paragraph F) Claimant's request for re-argument is insufficient and the Court denies the request. Claimant has not shown that the Court overlooked or misinterpreted the facts or law on the prior motion, nor that it otherwise mistakenly arrived at its earlier decision. (Mayer v National Arts Club, 192 AD2d 863, 865)
Claimant also argues that he was not given enough time to appeal the Court's prior decision because the order was signed on August 27, 2001, but he did not receive a copy of the decision until September 25, 2001. Court of Claims Act §25 provides that a party has 30 days from the date of service of the judgment or order appealed from to serve a notice of appeal. The order was filed September 20, 2001, and claimant received his copy by September 25, 2001. Presumably the order was mailed to claimant by the Clerk's office on September 20 or 21, 2001. Using the September 20, 2001 date, claimant would have had 30 days to serve a notice of appeal after he received his copy of the decision and order.

Finally, claimant argues that he is entitled to relief under 42 U.S.C. §1983; however, this Court has no jurisdiction to grant such relief. (
Cavanaugh v Doherty, 243 AD2d 92; DeLaRosa v State of New York, 173 Misc 2d 1007) Accordingly, claimant's motion M-64154 is DENIED.

May 13, 2002
Syracuse, New York

HON. DIANE L. FITZPATRICK
Judge of the Court of Claims


The Court considered the following documents in deciding these motions:

Motion No. M-64066

Notice of Motion........................................................................................1

Affidavit of Donald Bennett in support, with all exhibits

attached thereto...............................................................................2


Affidavit of Joel L. Marmelstein, Esquire, Assistant Attorney General

in opposition, with all exhibits attached thereto............................3


Motion No. M-64154


Notice of Motion.........................................................................................4


Affidavit of Donald Bennett in support, with all exhibits

attached thereto............................................................................... 5


No response was interposed to this motion on behalf of the defendant.


[1]Claim No. 103987 was dismissed by Order of Presiding Judge Read, filed March 19, 2002. Claimant also brought a motion, No. M-64198 related to claim number 103987 which is now moot.
[2]Claim No. 103833 was dismissed by Order of this Court, filed September 20, 2001.
[3]It is not a motion to renew, since no new facts are asserted. (See, CPLR 2221(e))