New York State Court of Claims

New York State Court of Claims

ZAYAS v. THE STATE OF NEW YORK, #2004-030-510, Claim No. 107952, Motion No. M-67643


Synopsis


Case Information

UID:
2004-030-510
Claimant(s):
ENRIQUE ZAYAS
Claimant short name:
ZAYAS
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
107952
Motion number(s):
M-67643
Cross-motion number(s):

Judge:
THOMAS H. SCUCCIMARRA
Claimant's attorney:
ENRIQUE ZAYAS, PRO SE
Defendant's attorney:
HON. ELIOT SPITZER, NEW YORK STATE ATTORNEY GENERALBY: MARY B. KAVANEY, ASSISTANT ATTORNEY GENERAL
Third-party defendant's attorney:

Signature date:
March 1, 2004
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers numbered 1 to 5 were read and considered on Claimant's motion

for reargument brought pursuant to Civil Practice Law and Rules §2221(d)(2):

1,2 Notice of Motion; Affidavit in Support by Enrique Zayas, Claimant and attached exhibits

  1. Affirmation in Opposition by Mary B. Kavaney, Assistant Attorney General and attached exhibits
  1. Response to Defendant's Affirmation in Opposition
5,6 Filed papers: Claim; Zayas v State of New York, Claim No. 107952, Motion No. M-67108 (Scuccimarra, J., filed October 7, 2003).

After carefully considering the papers submitted and the applicable law the motion is disposed of as follows:

"A motion for reargument, addressed to the discretion of the court, 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 (1st Dept 1979); See, §2221(d)(2) Civil Practice Law and Rules. Additionally, such a motion should be brought within thirty (30) days after service of a copy of the order with notice of entry, or in any event prior to the entry of any judgment by the appellate court to which an appeal has been taken. §2221(d)(3) Civil Practice Law and Rules; See Bray v Gluck, 235 AD2d 72 (3d Dept 1997), lv to appeal dismissed, 91 NY2d 1002 (1998).

In this case, the claim was dismissed as untimely served and filed. The claim asserts that as a result of the allegedly wrongful denial of a family visit on December 10, 2002, Claimant incurred monetary loss based upon the travel expenses incurred by his family to arrive for the cancelled visit. The denial of the visit was the result of a misbehavior report. According to his Claim, on or about January 2, 2003 a hearing officer dismissed the allegations of misbehavior against him. Claimant indicates that on January 15, 2003 he "not only submitted a grievance . . . but also a facility claim . . . "; [Claim No. 107952, ¶15], seeking a refund of $1500.00 travel expenses. The facility claim was disapproved on February 19, 2003, with the Acting Superintendent noting "Type of loss cannot be addressed by Inmate Claim procedure." [Affirmation in Opposition by Assistant Attorney General, Exhibit 3]. Claimant asserts he did not receive the Acting Superintendent's decision until February 25, 2003. [Affidavit in Support by Enrique Zayas, ¶7].

The Claim was served upon the Office of the Attorney General on June 23, 2003. Claimant now argues that the statute of limitations pertinent to personal property loss claims requiring service of a claim within one hundred twenty (120) days of its accrual should apply in his case. As noted in the Court's original decision, even if the statute of limitations pertinent to personal property loss claims applied - which it does not - the claim was not timely served and filed. Court of Claims Act §10(9).

The papers submitted do not establish that the Court misapplied any controlling principle of law; therefore Claimant's motion number M-67643 for reargument is denied in its entirety. The remaining application to restore and for other and future relief are denied as moot.


March 1, 2004
White Plains, New York

HON. THOMAS H. SCUCCIMARRA
Judge of the Court of Claims