New York State Court of Claims

New York State Court of Claims

McKINLEY v. THE STATE OF NEW YORK, #2002-019-540, Claim No. 105389, Motion No. M-65161


Claimant's motion for reargument/renewal is denied.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant's attorney:
Defendant's attorney:
BY: James E. Shoemaker, Assistant Attorney Generalof counsel
Third-party defendant's attorney:

Signature date:
June 17, 2002

Official citation:

Appellate results:

See also (multicaptioned case)


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 motion:[1]
  1. DECISION AND ORDER, Ct Cl, Lebous, J., Claim No. 105389, Motion Nos. M-64727 and M-64809, filed April 17, 2002.
  2. Notice of Motion No. M-65161, dated April 21, 2002, and filed May 8, 2002.
  3. Affidavit of Sincere McKinley, in support of motion, sworn to April 25, 2002, with attached exhibit.
  4. 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 hereinbelow.

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] [3]). 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 & Order.[2] 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 after 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 denied.

Accordingly, in view of the foregoing, it is ORDERED that Claimant's Motion for Reargument and/or Renewal, Motion No. M-65161, is DENIED.

June 17, 2002
Binghamton, New York

Judge of the Court of Claims

[1]The Court did not consider Claimant's "Affirmation in Opposition to Defendant's Motion", sworn to May 28, 2002 and received in chambers on June 19, 2002. This motion was returnable on May 29, 2002 and no good cause was demonstrated warranting acceptance of late papers. (CPLR 2214 [c]).
[2]Assuming, arguendo, that this form/exhibit does in fact relate to the lost personal property at issue here, since nothing on the form identifies the subject matter of that grievance.