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
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] and ).
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), 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,
Claimant, however, has not submitted
any proof whatsoever that a notice of intention was timely served upon the
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
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