New York State Court of Claims

New York State Court of Claims

ROSE v. THE STATE OF NEW YORK, #2003-031-097, Claim No. 106696, Motion No. M-67098


Synopsis


Case Information

UID:
2003-031-097
Claimant(s):
ADRIAN ROSE
Claimant short name:
ROSE
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
106696
Motion number(s):
M-67098
Cross-motion number(s):

Judge:
RENÉE FORGENSI MINARIK
Claimant's attorney:
ADRIAN ROSE, PRO SE
Defendant's attorney:
HON. ELIOT SPITZER
New York State Attorney General
BY: TIMOTHY P. MULVEY, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
December 3, 2003
City:
Rochester
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers, numbered 1 to 3, were read on motion by Claimant for an order granting reargument of a previous motion, pursuant to CPLR 2221:
1. Claimant's Notice of Motion, filed July 15, 2003;
2. Claimant's Affidavit, sworn to July 7, 2003, with attached exhibits;
3. Affirmation of Timothy P. Mulvey, Esq., dated August 5, 2003, with attached exhibit. This is Claimant's motion for permission to reargue the Decision and Order of the Honorable Donald J. Corbett, Jr., filed on March 3 2003, which dismissed the above identified claim as jurisdictionally defective due to Claimant's failure to exhaust his administrative remedies pursuant to Court of Claims Act § 10(9) ("CCA"). In his underlying action, Claimant alleged that Defendant was responsible for the loss of his personal property in the amount of $403.98. Claimant alleged that he filed an administrative claim in the amount of $403.98 on August 19, 2002, and that Defendant did not respond. Claimant filed his underlying claim approximately six weeks later, on September 26, 2002. It appears that, in the underlying motion, Defendant submitted an affidavit from Auburn Correctional Facility Liaison Officer Lawrence Cheney to demonstrate that Claimant did not even file an administrative claim, let alone exhaust his administrative remedies. In July of 2003, it was determined that Claimant did submit an administrative claim, but that the claim was rejected as incomplete and Claimant was told to resubmit the claim with the necessary paper work.

While Claimant has demonstrated that he did at least attempt to file an administrative claim, he has offered no evidence that the claim was resubmitted, or that any appeal of such resubmitted administrative claim was ever taken. A motion to reargue, which is governed by CPLR 2221 (d)(2),
"is designed to afford a party an opportunity to establish that the court overlooked or misapprehended the relevant facts, or misapplied any controlling principle of law. Its purpose is not to serve as a vehicle to permit the unsuccessful party to argue once again the very questions previously decided . . . (citations omitted). Nor does reargument serve to provide a party an opportunity to advance arguments different from those tendered on the original application." Foley v Roche, 68 AD2d 558, 567-568.
When the claim involved is one for damages for the loss of personal property of an inmate confined in a State facility, the provisions of CCA § 10(9) are controlling. That section reads:
"A claim of any inmate in the custody of the department of correctional services for recovery of damages for injury to or loss of personal property may not be filed unless and until the inmate has exhausted the personal property claims administrative remedy, established for inmates by the department. Such claim must be filed and served within one hundred twenty days after the date on which the inmate has exhausted such remedy."

Claimant has failed to demonstrate that he complied with CCA § 10(9) and, therefore, he has failed to demonstrate that the previous decision of Judge Corbett was in error.

Based upon the foregoing it is:

ORDERED, that Claimant's motion is denied.

December 3, 2003
Rochester, New York

HON. RENÉE FORGENSI MINARIK
Judge of the Court of Claims