New York State Court of Claims

New York State Court of Claims

WRIGHT v. STATE OF NEW YORK, #2005-018-477, Claim No. 106453, Motion No. M-69702


Claimant's motion to re-argue is denied.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant's attorney:
Defendant's attorney:
Attorney General of the State of New York
By: ED J. THOMPSON, ESQUIREAssistant Attorney General
Third-party defendant's attorney:

Signature date:
July 20, 2005

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant brings this motion to reargue the Decision and Order which granted

Defendant's motion to dismiss the claim for lack of jurisdiction. Defendant opposes the motion.

Defendant brought a prior motion (Motion No. M-68762) seeking an order dismissing claim number 106453 on the ground that Claimant served his claim by regular mail, not certified mail, return receipt requested, as required. A Decision and Order was filed December 3, 2004, granting Defendant's motion and dismissing the claim. Claimant now seeks to have the Court revisit the issues raised by that motion by arguing that as an inmate he had no control over how the mail is sent once it is placed in the facilities mail box or given to a State employee for mailing.

A motion to reargue (CPLR 2221[d]) is based upon matters of fact or law allegedly overlooked or misapprehended by the Court in determining the prior motion. It must be made within 30 days after service of a copy of the order determining the prior motion. A motion to renew (CPLR 2221[e]) is based upon new facts not offered on the prior motion that would change the determination or demonstrate that there has been a change in the law that would require a change of the prior determination. This motion seems to be both one to reargue and renew. The Court will address the separate portions of Claimant's motion in accordance with CPLR 2221(f).

Claimant's motion to reargue the prior motion must be DENIED. First, it is untimely. The Claimant acknowledges receipt of the Decision and Order (Motion No. M-68762) on December 7, 2004. This motion was filed on January 10, 2005 more than 30 days after service of the Decision and Order. But even if it were timely, the motion would have to be denied. Court of Claims Act § 11(a)(i) requires that a claim be served upon the Attorney General by certified mail, return receipt requested, or by personal service. This requirement is a jurisdictional prerequisite to maintaining an action in the Court of Claims (Byrne v State of New York, 104 AD2d 782,783 lv denied 64 NY2d 607). Claimant did not meet that requirement and thus the Court cannot hear the claim. Claimant's motion to reargue must be denied.

Claimant now also asserts that as an inmate in the custody of the Department of Correctional Services, it was not his fault that his claim was not mailed properly because he has no control over the mail once it leaves his hands. That may very well be true, but Claimant obviously is aware of the requirements for processing mail in the prison system, and he has failed to provide any documentation indicating he made an effort to send the claim certified mail, return receipt requested. If Claimant had provided a disbursement form indicating he had authorized the deduction from his account for certified mail, return receipt requested for the mailing of this claim, or if he had a certified mail, return receipt requested receipt indicating the claim was supposed to be mailed in that manner, his position would be persuasive, but Claimant has provided nothing. This portion of the motion must be denied as well.

Accordingly, the Court DENIES Claimant's motion in its entirety.

July 20, 2005
Syracuse, New York

Judge of the Court of Claims

The Court has considered the following documents in deciding this motion:

Motion to reargue Claimant's Claim which includes unsworn affidavit

of Anthony Wright...................................................................................1

Affirmation of Ed J. Thompson, Esquire, Assistant Attorney General,

in opposition.............................................................................................2