New York State Court of Claims

New York State Court of Claims

BARNES v. THE STATE OF NEW YORK, #2004-031-159, Claim No. 100753, Motion Nos. M-68789, M-69065


Synopsis


Claimant failed to indicate in what manner Court erred. His motion for reargument is denied. Claimant failed to show misconduct on the part of Defendant. Claimant's motion to strike Defendant's answer is also denied

Case Information

UID:
2004-031-159
Claimant(s):
JESSIE J. BARNES
Claimant short name:
BARNES
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
100753
Motion number(s):
M-68789, M-69065
Cross-motion number(s):

Judge:
RENÉE FORGENSI MINARIK
Claimant's attorney:
JESSIE J. BARNES, PRO SE
Defendant's attorney:
HON. ELIOT SPITZER
New York State Attorney General
BY: GREGORY P. MILLER, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
November 24, 2004
City:
Rochester
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)

.
Decision

The following papers, numbered 1 to 6, were read on motions by Claimant to reargue a previous decision and order (M-67992) and to strike Defendant's answer:
  1. Notice of Motion (M-68789), filed July 9, 2004;
2) Claimant's unsworn, undated statement submitted to the Clerk on July 9, 2004, with attached exhibits;
3) Notice of Motion (M-69065), filed September 2, 2004;
  1. Claimant's Affidavit, sworn to August 31, 2004, with attached exhibits;
5) Affidavit of Gregory P. Miller, Esq., sworn to October 18, 2004, with attached exhibits;
6) Decision and Order of the Hon. Renee Forgensi Minarik, filed June 29, 2004.Claimant has filed two motions relating to this claim. In the first, M-68789, Claimant requests reargument of his previous motion for summary judgment or preclusion relating to Defendant's alleged tampering with a videotape that Claimant intends to use as evidence at the trial of this matter. In his second motion, M-69065, Claimant requests that Defendant's answer be stricken due to Defendant's failure to produce the audiotape of Claimant's disciplinary hearing relating to the October 24, 1998 incident underlying this action.

The underlying claim in this matter alleges that, on October, 24, 1998, while he was incarcerated at Collins Correctional Facility, Claimant was assaulted by correction officers. Claimant alleges that the incident, or at least portions of the incident, were captured by surveillance cameras.
CLAIMANT'S MOTION FOR REARGUMENT
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). Claimant offers no indication as to how the Court's previous ruling was in error, or why reargument should be granted. His motion for reargument is, therefore, denied.
CLAIMANT'S MOTION TO STRIKE DEFENDANT'S ANSWER
With motion M-69065, Claimant requests that the Court strike Defendant's answer in light of the fact that Defendant failed to comply with the Court's previous decision and order directing production of the audiotape of Claimant's disciplinary hearing. However, that decision and order, filed on June 29, 2004, clearly stated that
"Defendant is hereby precluded from offering any evidence or testimony relating to audio and video recordings of the October 24, 1998 incident and Claimant's subsequent disciplinary hearing, unless, within 45 days of the filed date of this decision and order, Defendant provides to Claimant copies of those video and audio recordings at no cost to Claimant." (emphasis added)
Since that decision, Defendant has complied with the Court's decision and order relating to the videotape, but has indicated that it cannot locate the audiotape. There is no reason to believe Defendant's inability to find the audiotape is contumacious and, therefore, deserving of a more severe penalty than preclusion, which has already been imposed by my previous order. For this reason, Claimant's motion to strike Defendant's answer must be denied.

Based upon the foregoing, it is hereby

ORDERED, that Claimant's motions M-68789 and M-69065 are denied in their entirety.

November 24, 2004
Rochester, New York

HON. RENÉE FORGENSI MINARIK
Judge of the Court of Claims