This action for false imprisonment/wrongful confinement arose at Clinton
Correctional Facility in December 2001 when, it is alleged, claimant was placed
in keeplock in retaliation for having filed a complaint. In a Decision and
Order issued June 17, 2003, this Court denied claimant's motion for summary
judgment (Motion No. M-66157), holding that there was a material question of
fact and law as to whether claimant's confinement was privileged (see,
Broughton v State of New York, 37 NY2d 451, 456 , cert denied
sub nom Schanbarger v Kellogg, 423 US 929).
In the instant motion, claimant seeks reargument of his earlier motion,
asserting once again certain statements made by a Nurse Administrator
"overwhelmingly" meet the standard for summary judgment (Craggan memorandum of
law, p 1). In addition, claimant asserts that he is entitled to reargument
because his prior motion was allegedly "mishandled" by the Court because he was
not allowed to be present in the courtroom for the hearing on the motion
(id., p 2).
Pursuant to Rule 206.9(c) of the Uniform Rules for the Court of Claims (22
NYCRR §206.9[c]), all motions are deemed submitted as of their return date
"[u]nless oral argument has been requested by a party and permitted by the
court" (emphasis supplied). Although claimant requested oral argument of
Motion No. M-66157, the Court did not grant that request and, consequently, the
motion was properly decided on the written submissions.
With respect to claimant's motion to reargue the issues decided in his prior
motion, a motion to reargue must be based upon "matters of fact or law allegedly
overlooked or misapprehended by the court in determining the prior motion, but
[it] shall not include any matters of fact not offered on the prior motion"
(CPLR 2221[d]). Its purpose is not to serve as "a vehicle to permit the
unsuccessful party to argue once again the very questions previously decided"
(Foley v Roche, 68 AD2d 558, 567 [1st Dept 1979], lv denied 56
NY2d 507, see also Fosdick v Town of Hempstead, 126 NY 651
; Pahl Equip. Corp. v Kassis, 182 AD2d 22 [1st Dept 1992];), nor
may a party use this device to assert a new issue, particularly where the issue
is contrary to that party's earlier position (Mehta v Mehta, 196 AD2d
841, 842 [2d Dept 1993]). A motion to reargue a prior motion in the trial court
must be commenced within 30 days after service of the order sought to be
reargued, with notice of entry (CPLR 2221[d]).
As indicated above, the Decision and Order which claimant seeks to reargue was
filed on June 17, 2003 and, according to defense counsel, served with notice of
entry on June 27, 2003 (Nepveu affirmation, ¶3, Exhibit A). Consequently,
claimant's motion is untimely. Even if the Court were to exercise its
discretion to consider the instant motion on its merits, in light of the fact
that claimant may not have been able to promptly move to reargue (see,
Craggan reply affidavit, Point I, ¶¶2-6), claimant has failed to
establish that material facts were overlooked or that the law was misapplied in
reaching the decision on the prior motion. The critical question of whether
claimant's confinement was privileged remains undecided and can only be properly
determined at trial, where the Court may consider both the authorities cited by
claimant (id., Point II. ¶4) and the testimony of claimant and other
witnesses to the events.
Claimant's motion is denied.
1. Notice of Motion and Supporting Affidavit/Memorandum of Law of James
Craggan, pro se
2. Affirmation in Opposition of Kate H. Nepveu, Esq., AAG, with annexed
3. Reply Affidavit of James Craggan, pro se
Filed papers: Claim; Answer