New York State Court of Claims

New York State Court of Claims

CRAIG v. THE STATE OF NEW YORK, #2004-031-050, , Motion No. M-67571


Synopsis


Case Information

UID:
2004-031-050
Claimant(s):
EDWARD CRAIG, JR.
Claimant short name:
CRAIG
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):

Motion number(s):
M-67571
Cross-motion number(s):

Judge:
RENÉE FORGENSI MINARIK
Claimant's attorney:
COLEMAN & ANDREWS, LLCBY: LEROI J. ANDREWS, ESQ.
Defendant's attorney:
HON. ELIOT SPITZER
New York State Attorney General
BY: RICHARD B. FRIEDFERTIG, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
May 14, 2004
City:
Rochester
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers, numbered 1 to 4, were read on motion by Claimant for an order granting renewal of a previous motion pursuant to CPLR 2221(e):
1. Claimant's Notice of Motion, filed October 27, 2003;
2. Affirmation of Leroi J. Andrews, Esq., dated October 16, 2003, with attached exhibits;
3. Affidavit of Edward Craig, Jr., sworn to February 4, 2003;
4. Affidavit of Richard B. Friedfertig, Esq., sworn to November 26, 2003, with attached exhibits. This is Claimant's motion for permission to renew a previous Decision and Order of this Court, filed October 4, 2002, which denied Mr. Craig's application for permission to file a late claim. In his proposed claim, Mr. Craig had alleged that the State negligently failed to protect him from an assault by another inmate.

With this motion, Claimant requests renewal of the previous motion, noting that the previous order had denied the requested relief because the application had failed to provide a sworn statement from Claimant or anyone with knowledge of the facts asserted and that it had failed to indicate any basis for determining that Defendant had notice that the assault was reasonably foreseeable. Claimant attempts to cure these deficits by submitting his own affidavit in which he alleges that "[a]pproximately one week before the date of the stabbing, I informed a

Corrections Officer stationed in the Dorm area that Inmate Abdul Hagg had made threats to assault me."

Defendant opposes the motion, arguing that Claimant has failed to satisfy the requirements necessary for a successful renewal motion and that Claimant's self-serving and vague statement regarding notice to Defendant prior to the assault is insufficient and unreliable.

An application for leave to renew must be based upon additional material facts which existed at the time the prior motion was made but which were not then known to the party seeking leave to renew and which, therefore, were not made known to the Court (Matter of Beiny v Wynyard, 132 AD2d 190, appeal dismissed 71 NY2d 994).

Accordingly, a motion to renew under CPLR 2221(e) presupposes new facts. Claimant's "additional material facts," however, were not unknown to Claimant at the time of his previous application. Even if they were, in addition to offering the new material, a party's moving papers "shall contain reasonable justification for the failure to present such facts on the prior motion" (CPLR 2221 [e] [3]). Claimant has failed to offer any justification for failing to present these facts during his earlier application (Delvecchio v Bayside Chrysler Plymouth Jeep Eagle, 271 AD2d 636 [renewal motion properly denied where no reasonable excuse was proffered]). A motion to renew " ‘is not a second chance freely given to parties who have not exercised due diligence in making their first factual presentation' " (Matter of Barnes v State of New York, 159 AD2d 753, 754, lv dismissed 76 NY2d 935, quoting Matter of Beiny, 132 AD2d 190, 210, lv dismissed 71 NY2d 994).

Additionally, CPLR 2221(e)(2) requires the "new facts" to be such that they "would change the prior determination . . . ." I note that, as Defendant points out, these "additional material facts" (that Claimant told an unidentified correction officer approximately a week before the assault that he had been threatened by his assailant) are both self-serving and vague and do not constitute facts which would necessarily "change the prior determination."

Based upon the foregoing, it is:

ORDERED, that Claimant's motion is denied.

May 14, 2004
Rochester, New York

HON. RENÉE FORGENSI MINARIK
Judge of the Court of Claims