New York State Court of Claims

New York State Court of Claims

CURRO v. THE STATE OF NEW YORK, #2003-016-060, Claim No. 103105, Motion Nos. M-66647, CM-66680


Inmate's motion to "reargue" trial decision was denied as was defendant's cross-motion to "dismiss" the motion.

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):
Alan C. Marin
Claimant's attorney:
Andrew Curro
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Joseph F. Romani, Esq., AAG
Third-party defendant's attorney:

Signature date:
August 12, 2003
New York

Official citation:

Appellate results:

See also (multicaptioned case)


This is Andrew Curro's motion pursuant to CPLR §2221 for leave to reargue this Court's Decision filed March 17, 2003, which dismissed Mr. Curro's claim. Defendant opposes such motion, denominating its opposition as a cross-motion. To the extent that claimant attempts to make such motion pursuant to CPLR 2221, which governs motions to renew or reargue, such is not an appropriate vehicle, as it relates to the reargument or renewal of previous motions – not trial decisions. The relief Curro seeks should have been sought in a motion made pursuant to CPLR 4404(b). See Dawes v State of New York, 194 Misc 2d 617, 755 NYS2d 221 (Ct Cl 2003).

In any event, Curro now argues for the first time that in packing up his property, defendant used an "obsolete" I-64 form to itemize his property. Specifically, he asserts that defendant failed to use a newer form which contains a section under which an inmate signs to acknowledge that he has been instructed to include all active legal materials in the bags of property that will travel with him – as opposed to being sent by mail.

Curro attaches to his moving papers as exhibit B what appears to be a sample of an I-64 form containing such new section, which document is dated November 1, 1994. However, such document was not admitted into evidence. As to those documents that were received into evidence, there is nothing to suggest that the form used with respect to Curro's property was obsolete or otherwise improper; the directive which attaches a sample form containing such a new section is dated July 6, 2000 as is the sample form itself (see claimant's trial exhibit 3), which was after claimant's September 10, 1999 loss. Even if Curro could have proved that an obsolete or improper I-64 form was used by defendant with regard to his property, as set forth in the Court's Decision, he failed to provide any details as to the circumstances surrounding his request to take his transcript with him, nor did he prove that his transcript was from an active legal case. In sum, even assuming that Curro had properly made a motion pursuant to CPLR 4404(b), he has failed to demonstrate that this Court should set aside its prior Decision.

Accordingly, having reviewed the parties' submissions[1], IT IS ORDERED that motion no. M-66647 be denied and cross-motion no. CM-66680 be denied.

August 12, 2003
New York, New York

Judge of the Court of Claims

  1. [1]The following were reviewed: claimant's notice of motion with affidavit in support, table of contents and exhibits A-C; defendant's notice of cross-motion with affirmation in support of cross-motion and in opposition to motion and exhibit A; and claimant's reply affidavit.