New York State Court of Claims


On Saturday September 21, 2014 from 7am-8am we will be upgrading our server. The search functionality may be unavailable during that time.


New York State Court of Claims

REED v. THE STATE OF NEW YORK, #2004-019-571, Claim No. 108453, Motion No. M-68694


Synopsis


Claimant's motion for reconsideration of prior dismissal is granted, and upon reconsideration, court adheres to original decision; claim dismissed.

Case Information

UID:
2004-019-571
Claimant(s):
TERRY REED
Claimant short name:
REED
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
108453
Motion number(s):
M-68694
Cross-motion number(s):

Judge:
FERRIS D. LEBOUS
Claimant's attorney:
TERRY REED, PRO SE
Defendant's attorney:
HON. ELIOT SPITZER ATTORNEY GENERALBY: Joseph F. Romani, Assistant Attorney General, of counsel
Third-party defendant's attorney:

Signature date:
August 31, 2004
City:
Binghamton
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant, an inmate appearing pro se, moves for reconsideration of this court's prior dismissal of his claim. The State of New York (hereinafter "State") opposes the motion.

This court previously granted the State's motion to dismiss and rejected claimant's argument that the State should have been estopped from invoking a jurisdictional defense because it refused to process his request for an advance for legal mail. (Reed v State of New York, Ct Cl, January 2, 2004, Lebous, J., Claim No. 108453, Motion No. M-67717 [UID No. 2004-019-501]).[1]


By way of this motion, claimant seeks to submit a new exhibit in relation to his estoppel argument, namely an "authorized advance request" form. As such, the court construes claimant's motion for reconsideration as an attempt to make a motion for renewal pursuant to CPLR 2221. However, 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, it is not entirely clear from claimant's papers why this exhibit was not previously attached to his prior papers. Nevertheless, the court will provide this pro se litigant every benefit and address the substance of his renewal motion.


The new exhibit submitted by claimant is an "authorized advance request" form which contains a handwritten date of September 15, 2003. However, said form also contains a "received" stamp by the Elmira Correctional Facility Inmate Accounts department dated September 19, 2000. Obviously, these dates are inconsistent with one another and in and of themselves cast doubt on claimant's allegations that this form relates to a "recent" request for a legal advance for this claim. Moreover, the notation on the form of "need source signature" does not in any way demonstrate that prison officials failed to follow their own procedures in processing this request, but rather demonstrates that the form was not properly completed by claimant in the first instance. (7 NYCRR 721 [a] [3] [iv] and [vi]). In sum, the court finds that claimant has failed to submit sufficient proof warranting the application of estoppel against the State in this instance.


In view of the foregoing, it is ORDERED, that claimant's motion for reconsideration, Motion No. M-68694, is GRANTED, and upon such reconsideration, the court adheres to its prior Decision & Order; and Claim No. 108453 is DISMISSED.

August 31, 2004
Binghamton, New York

HON. FERRIS D. LEBOUS
Judge of the Court of Claims


The Court has considered the following papers in connection with this motion:
  1. DECISION AND ORDER, Lebous, J., Claim No. 108453, Motion No. M-67717, dated January 2, 2004.
  2. Notice o Motion No. M-68694, dated June 6, 2004, filed June 17, 2004.
  3. Affidavit of Terry Reed, in support of motion, undated and unsworn to, with attached exhibit.
  4. Affirmation of Joseph F. Romani, AAG, in opposition to motion, dated July 13, 2004, and filed July 15, 2004.

[1]Unreported decisions from the Court of Claims are available via the Internet at