New York State Court of Claims

New York State Court of Claims

LEBRON v. THE STATE OF NEW YORK, #2003-009-54, Claim No. NONE, Motion No. M-67407


Synopsis


Claimant's application to reargue a prior motion seeking permission to serve and file a late claim was denied.

Case Information

UID:
2003-009-54
Claimant(s):
ELVIN LEBRON
Claimant short name:
LEBRON
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
NONE
Motion number(s):
M-67407
Cross-motion number(s):

Judge:
NICHOLAS V. MIDEY JR.
Claimant's attorney:
ELVIN LEBRON, Pro Se
Defendant's attorney:
HON. ELIOT SPITZER
Attorney General
BY: G. Lawrence Dillon, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant's attorney:

Signature date:
October 27, 2003
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

Claimant seeks leave to reargue his prior motion requesting permission to serve and file a late claim, previously denied by this Court.

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


Affirmation in Opposition, with Exhibits 3

In a prior motion (Motion No. M-66168), claimant sought permission to serve and file a late claim. By a decision and order dated June 30, 2003, this Court, after a consideration of the factors contained in Court of Claims Act § 10(6), denied claimant's application, finding, inter alia, that claimant had not asserted a meritorious cause of action. In this motion to reargue, claimant requests this Court to reconsider such determination.

In opposing this application, defense counsel contends that the application was not timely made as required by CPLR § 2221(d)(3). As set forth in defendant's opposing affirmation (see Item 2), defendant has established that service of "Notice of Entry of Decision and Order" was mailed to claimant on August 4, 2003. Pursuant to CPLR § 2221(d)(3), claimant had 30 days after service of this order in which to file and serve his motion requesting re-argument. Thirty days from the date of mailing (August 4, 2003) is September 3, 2003. Allowing claimant an additional five days, since service of the decision and order was made by mail, claimant therefore had until September 8, 2003 in which to file and serve his motion for re-argument. This motion, however, was not mailed to defendant until September 11, 2003 (see copy of envelope, and postmark affixed thereon, set forth as Exhibit B to Item 2), and was not filed with the Court until September 19, 2003. Accordingly, this application is denied as untimely.

The Court, however, has also reviewed the arguments raised by claimant in this motion. Specifically, in finding that he had not asserted a meritorious cause of action, claimant contends that this Court did not consider all of claimant's allegations pertaining to his assault and battery cause of action, and that the Court did not address the applicability of Brown v State of New York (89 NY2d 172), as it pertains to the scope of immunity provided by Arteaga v State of New York (72 NY2d 212).

This Court has reviewed its decision and order dated June 30, 2003 with regard to these contentions, when it found that claimant had not asserted a meritorious claim.

With regard to the assault and battery allegations, in its decision and order dated June 30, 2003, this Court found that any intentional torts alleged by claimant were barred by the statute of limitations (CPLR § 215), and therefore this Court did not have authority to grant late claim relief for such intentional torts.

Furthermore, in said decision and order, this Court specifically found that claimant's reliance upon Brown v State of New York, supra, was misplaced, and that the allegations made by claimant in his proposed claim were subject to the absolute immunity provided to the State by Arteaga v State of New York, supra.

Accordingly, even though this Court has found that claimant's application for re-argument was not timely made, it has also reviewed the merits of this application and has found that claimant's moving papers do not establish that this Court overlooked or misapprehended the relevant facts, or that this Court misapplied any controlling principle of law (Schneider v Solowey, 141 AD2d 813; Foley v Roche, 68 AD2d 558), in its original decision and order. The Court hereby affirms its original decision that claimant had not asserted a meritorious claim in his late claim application, and therefore he should not be granted permission to serve and file a late claim.

Accordingly, it is

ORDERED, that Motion No. M-67407 is hereby DENIED.


October 27, 2003
Syracuse, New York

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