New York State Court of Claims

New York State Court of Claims

LAMAGE v. THE STATE OF NEW YORK, #2003-031-106, Claim No. 105805, Motion No. M-67423


Synopsis


Case Information

UID:
2003-031-106
Claimant(s):
EDWIN LAMAGE
Claimant short name:
LAMAGE
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
105805
Motion number(s):
M-67423
Cross-motion number(s):

Judge:
RENÉE FORGENSI MINARIK
Claimant's attorney:
EDWIN LAMAGE, PRO SE
Defendant's attorney:
HON. ELIOT SPITZER
New York State Attorney General
BY: THOMAS G. RAMSAY, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
December 30, 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 reargument of a previous motion for partial summary judgment:
1. Claimant's Notice of Motion, filed September 22, 2003;
2. Claimant's Affidavit, sworn to September 15, 2003, with attached exhibits;
  1. Affirmation In Opposition of Thomas G. Ramsay, Esq., dated October 8, 2003, with attached exhibits. This is Claimant's motion to reargue a previous motion in which partial summary judgment in his favor was denied. In the relevant part of his underlying claim, Mr. Lamage alleges that Defendant negligently failed to secure his cell while he was at programming on September 27, 2001, and that many articles of personal property were subsequently stolen.
In my decision concerning the previous motion, filed on September 8, 2003, I found that Defendant had demonstrated that questions of fact existed as to what was lost, how it was lost, and who was responsible for any such loss.

With this motion, Claimant asserts that the Court erred by failing to determine that he had nothing to do with the fire in his cell the day after the alleged theft of his property, because he was not in his cell at the time of the fire. Claimant also implies that, because Defendant failed to properly fill out all of the paperwork regarding the fire and the investigation into its cause, Defendant is legally responsible, as a matter of law, for Claimant's lost property.

Defendant, however, denied that it negligently failed to secure Claimant's cell on the date of the alleged theft. Defendant also denied that all of the property Claimant alleges he lost as a result of the theft was, in fact, lost in this manner. Claimant does not address the fact that these denials raise questions of fact which preclude summary judgment. While it may be true that Claimant did not set the fire in his cell, and that Defendant did not properly fill out the required paperwork following the fire, there remain questions of fact regarding what personal property was lost, how it was lost and who is responsible for any such loss.

A motion to reargue is governed by CPLR 2221 [d] [2] and "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). In this motion, Claimant has failed to indicate how the Court's previous ruling was in error.

Based upon the foregoing it is:

ORDERED, that Claimant's motion for reargument is denied.

December 30, 2003
Rochester, New York

HON. RENÉE FORGENSI MINARIK
Judge of the Court of Claims