New York State Court of Claims

New York State Court of Claims

LAROCCO v. THE STATE OF NEW YORK, #2006-009-031, Claim No. 110553, Motion Nos. M-70800, M-71251


Synopsis


Claimant’s motion seeking reconsideration of a prior decision and order dismissing his claim was denied, and a subsequent motion for summary motion was also denied as moot.

Case Information

UID:
2006-009-031
Claimant(s):
DOMINICK LAROCCO
Claimant short name:
LAROCCO
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
110553
Motion number(s):
M-70800, M-71251
Cross-motion number(s):

Judge:
NICHOLAS V. MIDEY JR.
Claimant’s attorney:
DOMINICK LAROCCO, Pro Se
Defendant’s attorney:
HON. ELIOT SPITZER
Attorney General
BY: G. Lawrence Dillon, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant’s attorney:

Signature date:
May 31, 2006
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

In Motion No. M-70800, claimant has requested that this Court reconsider its decision in a prior Decision and Order which dismissed this claim based upon untimely service and filing. In a subsequent motion (Motion No. M-71251), claimant has moved for summary judgment in his favor on this claim. For purposes of judicial economy, these motions will be considered together.

The following papers were considered by the Court in connection with these motions:
Correspondence (four pages) dated September 13, 2005 from claimant (treated by the Court as a Motion “Requesting Reconsideration” and assigned Motion No. M-70800) 1


Defendant’s Response, with Exhibit (M-70800) 2

Reply Affirmation (M-70800) 3


Notice of Motion, Affirmation in Support (M-71251) 4,5


Defendant’s Response, with Exhibits (M-71251) 6


Reply Affirmation (M-71251) 7


Filed Papers: Claim, Decision and Order to Motion No. M-69993

In a Decision and Order to a prior motion[1] this Court granted defendant’s motion to dismiss the claim based upon untimely filing and service. In Motion No. M-70800, claimant has now requested that the Court “reconsider” its decision to dismiss his claim. Upon a review of claimant’s request, the Court finds that the proper avenue for the relief sought by claimant is either a motion to reargue pursuant to CPLR Rule 2221(d) or a motion to renew pursuant to Rule 2221(e), and this application will therefore be determined accordingly.

A motion for reargument provides a party with an opportunity to establish that the Court overlooked or misapprehended the relevant facts, or misapplied a controlling principle of law. Its purpose, however, is not to provide the unsuccessful party with another opportunity to argue the very questions which were previously decided (Foley v Roche, 68 AD2d 558). A motion to renew, on the other hand, is based upon new facts which were not offered on the prior motion, and that such facts would change the prior determination. There must be reasonable justification for a party’s failure to present the new facts on the prior motion (CPLR Rule 2221[e][2] and [3]).

As previously mentioned herein, in its prior Decision and Order this Court dismissed the claim, based upon defendant establishing to the satisfaction of this Court that the claim was not timely served or filed. According to the papers on file with the Clerk of the Court of Claims, claimant did not submit any response to that motion to dismiss.

In his claim, claimant, while an inmate incarcerated at Mid-State Correctional Facility, alleged both intentional and unintentional torts against the State when he was required to retake a “TABE Test”. According to his claim, claimant passed this test on October 2, 2003, but he was accused of cheating and he was then required to retake that same test on November 4, 2003. Claimant filed an administrative grievance at the facility, and by his own admission, his appeal of this grievance was denied in February, 2004. According to claimant, his claim accrued on February 13, 2004 (see Item 1, page 2).

Pursuant to Court of Claims Act § 10(3) (governing unintentional torts), and § 10(3-b) (governing intentional torts), a claim must be served upon the Attorney General and filed with the Clerk of the Court of Claims within 90 days from the date of accrual, unless within such time period a written notice of intention to file a claim is served upon the Attorney General. If a claimant serves a written notice of intention, he or she must then file and serve the claim within two years after accrual for unintentional torts (§ 10[3]), or within one year after accrual for intentional torts (§ 10[3-b]). Based upon the affirmation submitted by defendant’s attorney with the original motion (M-69993) this Court found that claimant had not served any notice of intention upon the Attorney General. In his filed claim, claimant alleged that a notice of intention was served upon the Attorney General on February 20, 2004. Similarly, in his current application, claimant states that he “filed” a notice of intention dated February 20, 2004.[2] Claimant, however, has not submitted any proof whatsoever that a notice of intention was timely served upon the Attorney General.

Furthermore, the records of this Court establish that this claim was filed with the Clerk of the Court of Claims on February 24, 2005. In the prior motion (M-69993), defendant had established to the satisfaction of this Court that the claim was served upon the Attorney General on the same date, February 24, 2005. Claimant has not submitted any documentation or other evidence with his current application (M-70800) to establish that this claim was served upon the Attorney General and/or filed with the Clerk of the Court of Claims on any other date[3].

Accordingly, since claimant has failed to establish that his claim was served or filed within 90 days from the date of accrual, or that a notice of intention was timely served upon the Attorney General, the Court finds that it did not overlook any relevant fact, or misapply any controlling principle of law. Furthermore, claimant has not alleged any new facts which were not before the Court when it considered the State’s motion to dismiss this claim. Claimant’s motion must therefore be denied.

Since the Court has found herein that the dismissal of Claim No. 110553 was made in accordance with controlling law, claimant’s subsequent motion for summary judgment (M-71251) has been rendered moot and must also be denied.

Therefore, it is

ORDERED, that Motion Nos. M-70800 and M-71251 are both hereby DENIED in their entirety.


May 31, 2006
Syracuse, New York

HON. NICHOLAS V. MIDEY JR.
Judge of the Court of Claims




[1]. Larocco v State of New York, Ct Cl, August 29, 2005, Midey, J., Claim No. 110553, Motion No. M-69993 (UID #2005-009-042). Unpublished decisions and selected orders of the Court of Claims are available via the Internet at http://www.nyscourtofclaims.state.ny.us/decisions.

[2].
Pursuant to Chapter 466 of the Laws of 1995 the provisions of § 10 of the Court of Claims Act were amended to eliminate the requirement that a claimant file a notice of intention with the Clerk of the Court of Claims.
[3]. In his application (M-70800), claimant has made reference to a prior late claim application. In a Decision and Order dated May 24, 2004, this Court denied a late claim application apparently based upon the same facts that form the basis of Claim No. 110553 (see Decision and Order to Motion No. M-68085). The Court notes, with interest, that this application was denied based, in part, upon claimant’s failure to assert a potentially meritorious cause of action as required by Court of Claims Act § 10(6). (Larocco v State of New York, Ct Cl, May 24, 2004, Midey, J., Claim No. None, Motion No. M-68085, [UID #2004-009-33]).