New York State Court of Claims

New York State Court of Claims

GREEN v. THE STATE OF NEW YORK, #2005-019-507, Claim No. 109512, Motion Nos. M-69070, M-69431


Synopsis


Claimant's motion to compel discovery is denied as moot on adjourned motion date; claimant's motion for renewal is denied.

Case Information

UID:
2005-019-507
Claimant(s):
SHAWN GREEN
Claimant short name:
GREEN
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
109512
Motion number(s):
M-69070, M-69431
Cross-motion number(s):

Judge:
FERRIS D. LEBOUS
Claimant's attorney:
SHAWN GREEN, PRO SE
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERALBY: Joseph F. Romani, Assistant Attorney General, of counsel
Third-party defendant's attorney:

Signature date:
February 3, 2005
City:
Binghamton
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

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 motions.

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. 2004-019-590]).[1] 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 #630-29-04.


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][3]). 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.


February 3, 2005
Binghamton, New York

HON. FERRIS D. LEBOUS
Judge of the Court of Claims


The court has considered the following papers in connection with these motions:
  1. DECISION AND ORDER, Lebous, J., Claim No. 109512, Motion No. M-68999, filed October 15, 2004.
  2. DECISION AND ORDER, Lebous, J., Claim No. 109512, Motion No. M-69070, filed October 22, 2004.
  3. Notice of Motion No. M-69070, dated September 1, 2004, and filed September 7, 2004.
  4. Affidavit of Shawn Green, in support of Motion No. M-69070, sworn to September 1, 2004.
  5. Affirmation of Joseph F. Romani, AAG, in opposition to Motion No. M-69070, dated September 14, 2004, and filed September 16, 2004, with attached exhibits.
  6. Reply Affidavit of Shawn Green, in support of Motion No. M-69070, sworn to September 20, 2004 and filed September 23, 2004.
  7. "Motion to Renew", Motion No. M-69431, dated November 23, 2004, and filed November 26, 2004.
  8. "Affirmation" [sic] of Shawn Green, in support of Motion No. M-69431, sworn to November 23, 2004, with attachments.
  9. Affirmation of Joseph F. Romani, AAG, in opposition to Motion No. M-69431, dated December 14, 2004, and filed December 16, 2004.
  10. "Reply" of Shawn Green, in support of Motion No. M-69431, sworn to December 21, 2004, and filed December 27, 2004.

[1]Selected unreported decisions from the Court of Claims are available via the Internet at