This is an adjourned return date on claimant's motion for an order compelling a
response to his discovery demands (M-69070). Additionally, claimant has since
filed another motion, namely a motion to renew his prior motion to amend this
claim (M-69431). The State of New York (hereinafter "State") opposes both
Discovery Motion (M-69070)
Claimant served the State with a discovery demand dated June 14, 2004 and sent
a follow-up letter to the State dated July 30, 2004 requesting a response to his
first demand. The State never responded and claimant filed a motion for an
order compelling a response to his discovery demands originally returnable on
October 6, 2004. The State's response to said motion was comprised of a request
for a 120-day adjournment in order to allow time to provide the discovery
responses requested. By way of Decision and Order, this court granted the
State's request for a 120-day adjournment (until February 2, 2005) of this
matter in order to allow the State to respond to claimant's discovery demands.
(Green v State of New York
, Ct Cl, October 19, 2004, Lebous, J., Claim
No. 109512, Motion No. M-69070 [UID No.
As part of said Decision
& Order, the parties were instructed to keep the court advised, in writing,
as to the progress of discovery and/or make whatever supplemental submissions,
if any, to the court they deemed necessary in order to address any discovery
issues remaining on the adjourned return date. The court has received no
subsequent submissions from either party for this adjourned date. Consequently,
the matter is now deemed resolved and, as such, claimant's initial motion to
compel a response thereto will be denied as moot.
Motion to Renew (M-69431)
In a prior Decision & Order, this court denied without prejudice claimant's
motion to serve a "Second Supplemental Claim." (Green v State of New
York, Ct Cl, September 27, 2004, Lebous, J., Claim No. 109512, Motion No.
M-68999 [UID No. 2004-019-579]). More specifically, the court noted that it
could not ascertain whether the new proposed bailment claim identified as
facility claim #630-42-04 involved different property than contained in
claimant's First Supplemental Claim involving facility claim #630-29-04.
(Green, p 3). In any event, the court found that claimant had not
demonstrated whether he has exhausted his administrative remedies pursuant to
CCA 10 (9) with respect to facility claim #630-42-04. (Green, p 3).
Now, three months later, claimant has submitted a portion of the inmate
personal property claim form for facility claim #630-42-04 demonstrating that
his initial review was disapproved on June 9, 2004, while the appeal was
disapproved on June 16, 2004. Said exhibit, however, still does not describe
the property involved in facility claim #630-42-04 as compared to facility claim
In any event, it is well-settled that a motion for leave to renew is based upon
new or additional proof not previously presented and must "[c]ontain reasonable
justification for the failure to present such facts on the prior motion". (CPLR
2221[e]). Here, the claimant has not offered any justification for his
failure to include this exhibit with his initial application. Consequently, the
failure to offer a reasonable justification warrants denial of the motion in and
of itself. (Delvecchio v Bayside Chrysler Plymouth Jeep Eagle, 271 AD2d
636, 638; Spa Realty Assocs. v Springs Assocs., 213 AD2d 781, 783-784).
Additionally, the court notes that more than 120 days have now transpired since
claimant's appeal was denied on June 16, 2004 and, as such, his claim would be
untimely pursuant to CCA 10 (9).
Accordingly, in view of the foregoing, it is ORDERED that claimant's motion to
compel discovery, Motion No. M-69070, is DENIED AS MOOT; and claimant's motion
to renew, Motion No. M-69431, is DENIED.
DECISION AND ORDER, Lebous, J., Claim No. 109512, Motion No. M-68999, filed
October 15, 2004.
DECISION AND ORDER, Lebous, J., Claim No. 109512, Motion No. M-69070, filed
October 22, 2004.
Notice of Motion No. M-69070, dated September 1, 2004, and filed September 7,
Affidavit of Shawn Green, in support of Motion No. M-69070, sworn to September
Affirmation of Joseph F. Romani, AAG, in opposition to Motion No. M-69070,
dated September 14, 2004, and filed September 16, 2004, with attached
Reply Affidavit of Shawn Green, in support of Motion No. M-69070, sworn to
September 20, 2004 and filed September 23, 2004.
"Motion to Renew", Motion No. M-69431, dated November 23, 2004, and filed
November 26, 2004.
"Affirmation" [sic] of Shawn Green, in support of Motion No. M-69431,
sworn to November 23, 2004, with attachments.
Affirmation of Joseph F. Romani, AAG, in opposition to Motion No. M-69431,
dated December 14, 2004, and filed December 16, 2004.
"Reply" of Shawn Green, in support of Motion No. M-69431, sworn to December 21,
2004, and filed December 27, 2004.