In a previous decision and order, defendant's motion to dismiss the claim was
granted (Sinacore v State of New York, UID #2004-032-050, Claim No.
107738, Motion No. M-67551, June 17, 2004). Claimant now moves for correction
and amendment of that decision, because of what he portrays as "numerous errors
of both fact and law," errors that he contends impact on his substantial rights
and portray him "in a most unfavorable light by distorting his professional work
record" (Sinacore affidavit, p 1). In effect, claimant has moved for reargument
of the previous decision (CPLR 2221) and the Court will consider the motion as
Having reviewed claimant's objections, the Court agrees to make one correction,
amending the reference to "first month" in the second paragraph of the decision
to "second year."
Claimant's other objections to the earlier decision are without merit.
This action, and others that have previously been commenced in this and other
courts, all arise from the same factual situation: the events leading to the
termination of claimant's employment as a correction officer with the Department
of Correctional Services (DOCS) (see, e.g., Sinacore v Department of
Correctional Services, State of New York, 1995 WL 760660 [NDNY November 27,
1995], aff'd 104 F3d 354; Sinacore v State of New York, Claim No.
95937, Motion Nos. M-59023 and M-58196, July 26, 1999, King, J., aff'd
277 AD2d 675 [3d Dept Nov. 16, 2000], lv denied 96 NY2d 706 [February 20,
2001], rearg denied 96 NY2d 824 [May 8, 2001]; Sinacore v State of New
York, 176 Misc 2d 1 [Ct Cl Jan. 12, 1998]). While the legal theories of
those various actions and proceedings may have varied, the same "facts and
events" formed the basis for each one.
Claimant objects that the Court made reference to a 1989 notice of discipline,
when the record of that discipline had been removed from claimant's file after a
period in which there were no further problems. However, the claim by its very
nature required that the 1989 notice be acknowledged and referred to in some
fashion, because claimant was asserting that the 1989 notice had been relied
upon in subsequent proceedings when it should have been considered totally
expunged. Consequently, in order to discuss the cause of action, the Court had
to reference that discipline notice in some fashion. The subsequent notice of
discipline received by claimant in 1993 inevitably must be considered the
"second" one, both chronologically and numerically. It simply would not be
possible to explain the basis of claimant's cause of action without referring to
the first, second and third (1995) notices of discipline.
The word "termination," to which claimant also takes exception, refers to the
ending of something. It is frequently used to refer to the coming to end of a
contract period or a term of employment. Employment may be "terminated," by
several means including: the employee may leave the job voluntarily; he may
leave involuntarily (i.e., he may be fired); the initial contract period of
employment may expire; the employee may retire or pass away; or the employer may
go out of business.
Finally, in arguing that his causes of actions were not untimely, claimant
presents various theories and arguments on that subject. As noted in the prior
decision, however, even if each cause of action had been timely, they each had
other fatal defects. It is not necessary, therefore, to consider and discuss
claimant's theories as to when each cause of action accrued.
Claimant also argues that his notice of intention, which defendant had not
alleged was untimely, could and should have been considered the claim in his
action. Claimant did not, however, seek such a designation, by means of a motion
brought pursuant to Court of Claims Act
Claimant's motion, which is deemed a motion to reargue and considered as such,
is granted to the extent that the reference to "first month" in the second
paragraph of the earlier decision is amended to state "second year", and
1. Notice of Motion and Supporting Affidavit of Gerald Sinacore, pro se,
with annexed Exhibit;
2. Affirmation in Opposition of Michael W. Friedman, Esq., AAG;
3. Reply Affidavit of Gerald Sinacore, pro se with Exhibits;
Filed papers: Claim; Answer