Claimant, an inmate appearing pro se, moves for reargument of this
Court's prior denial of his motion for summary judgment and the granting of the
defendant's motion for dismissal. (McKinley v State of New York, Ct Cl,
April 17, 2002, Lebous, J., Claim No. 105389, Motion Nos. M-64727 &
M-64809). The State of New York (hereinafter "State") opposes the motion.
The Court has considered the following papers in connection with this
DECISION AND ORDER, Ct Cl, Lebous, J., Claim No. 105389, Motion Nos. M-64727
and M-64809, filed April 17, 2002.
Notice of Motion No. M-65161, dated April 21, 2002, and filed May 8,
Affidavit of Sincere McKinley, in support of motion, sworn to April 25, 2002,
with attached exhibit.
Affirmation of James E. Shoemaker, AAG, in opposition to motion, dated May 21,
2002, and filed May 23, 2002, with attached exhibit.
Claimant alleged that some of his personal property was lost during his
transfer from Elmira Correctional Facility to Sing Sing Correctional Facility.
The State moved for dismissal on the grounds that the Claim was premature due to
Claimant's failure to exhaust his administrative remedies pursuant to Court of
Claims Act (hereinafter "CCA") 10 (9), and Claimant moved for summary judgment.
This Court dismissed the Claim finding that Claimant had failed to demonstrate
that he exhausted the available administrative remedies as required by CCA 10
(9), thereby denying as moot Claimant's motion for summary judgment.
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", but does
not include the introduction of any new facts. (Foley v Roche, 68 AD2d
558, 567; CPLR 2221 [d]). Such motions are not casually granted since it is
not a tool to "[a]fford an unsuccessful party successive opportunities to
reargue issues previously decided...." (Matter of Mayer v National Arts
Club, 192 AD2d 863, 865). Here, Claimant argues that the Court overlooked
facts relating to Claimant's pursuit of his administrative remedies and submits,
for the first time, a copy of an Inmate Grievance Resolution Committee response
form which includes a date, December 24, 2001, that Claimant appealed his
grievance to the Superintendent. Claimant offers nothing indicating the Court
overlooked any facts or law originally presented that warrants reargument of
this Court's prior Decision and Order. Claimant's motion for reargument is
denied. The new facts that Claimant attempts to introduce are discussed
To the extent that Claimant's motion could be construed as a motion to renew
under CPLR 2221 due to the attempt to introduce new facts, namely the exhibits
and the date Claimant filed an appeal to the Superintendent, it is also denied.
By statutory amendment, it is mandated that a renewal application "[s]hall
contain reasonable justification for the failure to present such facts on the
prior motion". (CPLR 2221 [e] ). Here, Claimant offers no justification for
his failure to include this information on his original motion which warrants
denial of the motion in and of itself. (Delvecchio v Bayside Chrysler
Plymouth Jeep Eagle
, 271 AD2d 636, 638; Ulster Sav. Bank v Goldman
183 Misc 2d 893). In any event, however, the Court notes that this additional
information serves only to reaffirm this Court's earlier Decision &
The Inmate Grievance Resolution
Committee form submitted by Claimant indicates that he filed an appeal to the
Superintendent on December 24, 2001. However, Claimant filed this Claim with
the Clerk of the Court on that same date, December 24, 2001, and served the
Claim on the Attorney General's office on January 7, 2002. According to CCA 10
(9), such claims must be filed and served within one hundred twenty days
the date on which the inmate has exhausted such remedy. Here, the
Court was never provided the date of the denial of an appeal by the
superintendent or, for that matter, the substance thereof. Although Claimant
may well have received a response to his appeal, it was obviously sometime after
December 24, 2001, the date he filed his appeal in the first instance. As such,
this Claim was indeed filed and served prematurely in violation of CCA 10 (9).
Consequently, to the extent that Claimant seeks renewal, the motion must be
Accordingly, in view of the foregoing, it is ORDERED that Claimant's Motion for
Reargument and/or Renewal, Motion No. M-65161, is DENIED.