New York State Court of Claims

New York State Court of Claims

BROWN v. THE STATE OF NEW YORK, #2006-009-074, Claim No. 110036, Motion No. M-72129


Synopsis


Claimant’s motion seeking permission to reargue was denied.

Case Information

UID:
2006-009-074
Claimant(s):
FRED BROWN
Claimant short name:
BROWN
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
110036
Motion number(s):
M-72129
Cross-motion number(s):

Judge:
NICHOLAS V. MIDEY JR.
Claimant’s attorney:
FRED BROWN, Pro Se
Defendant’s attorney:
HON. ELIOT SPITZER
Attorney General
BY: Joel L. Marmelstein, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant’s attorney:

Signature date:
December 18, 2006
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant has brought this motion seeking permission to reargue a prior determination of this


Court. In a second notice of motion included with the motion papers, claimant has also requested


that this Court issue an order “To Settle this Claim for the Amount Determined by this Court in the


Amount of $323.11".


The following papers were considered by the Court in connection with this motion:

Notice of Motion (2), Affidavit in Support 1,2,3


Copies of Certified Mail Receipt Documents (various dates) submitted by claimant 4


Reply Affirmation, with Exhibits 5

In a prior Decision and Order[1], this Court denied claimant’s application for a default judgment on this bailment claim, as well as for poor person relief. In that Decision and Order this Court found that defendant had timely served its answer to the claim, and also determined that claimant was not entitled to poor person relief under the facts and circumstances of this claim.

As can best be determined from an examination of the papers submitted by claimant on this motion, claimant now seeks permission to reargue these determinations, and, in essence, also apparently seeks summary judgment in the amount of $323.11, the amount requested in his claim.[2] In support of his motion, claimant has submitted copies of certified mail receipts from the U.S. Postal Service, and has referred to those mailings in his supporting affidavit.

Pursuant to CPLR Rule 2221(d)(2), a motion seeking leave to reargue must “be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion”.

In this particular matter, claimant has not even addressed the prior ruling by this Court that defendant had timely submitted its answer to this claim, nor has he addressed in any manner whatsoever the Court’s prior determination denying his application for poor person relief. In sum, claimant has not presented any evidence, nor has he even made any allegations, that this Court overlooked or misapprehended any matter of fact or law in its prior Decision and Order.

Finally, with respect to what this Court has deemed to be claimant’s application for summary judgment (as set forth in his second notice of motion), claimant has not presented any evidence in this application either to establish the State’s liability on this bailment claim, or to the value of his lost property, and therefore he is not entitled to summary judgment.

Accordingly, based upon the foregoing, it is

ORDERED, that Motion No. M-72129 is hereby DENIED in its entirety.


December 18, 2006
Syracuse, New York

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




[1]. See Decision and Order, Brown v State of New York, Ct Cl, February 16, 2006, Midey, J., Claim No. 110036, Motion No. M-71024, (UID #2006-009-010). Unpublished decisions and selected orders of the Court of Claims are available via the Internet at http://www.nyscourtofclaims.state.ny.us/decisions.
[2]. In yet another Decision and Order on this claim (see Decision and Order, Brown v State of New York, Ct Cl, February 23, 2005, Midey, J., Claim No. 110036, Motion No. M-69459, (UID #2005-009-010), this Court denied a pre-answer motion to dismiss by the defendant, but did limit claimant’s proof to those items of personal property that had been previously listed in his institutional claim, which this Court determined to be $323.11.