New York State Court of Claims

New York State Court of Claims

LAROCCO v. THE STATE OF NEW YORK, #2006-009-075, Claim No. 110552, Motion No. M-72322


Synopsis


Claimant’s application seeking permission to renew a prior decision and order was denied.

Case Information

UID:
2006-009-075
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):
110552
Motion number(s):
M-72322
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:
December 18, 2006
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant has brought this motion seeking permission to renew a prior decision and order of

this Court pursuant to CPLR Rule 2221(e).


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

Notice of Motion, Affirmation, with Exhibit 1,2

Letter Response from G. Lawrence Dillon, Esq., Assistant Attorney General, dated October 11, 2006 3


Reply[1] 4

In a prior Decision and Order[2], this Court dismissed the claim herein upon finding that the defendant was entitled to absolute immunity for the discretionary decisions which formed the basis of claimant’s claim, relying upon Arteaga v State of New York, 72 NY2d 212. In his claim, claimant alleges that he was “set up” by correction officers and/or other inmates, leading to a misbehavior report being issued against him. At a disciplinary hearing, claimant was found guilty and required to serve six months in the Special Housing Unit (SHU) at Mid-State Correctional Facility. Following this administrative hearing, claimant sought damages for malicious prosecution, false imprisonment, and wrongful confinement, arising out of his placement in SHU.

Now, over one year later, claimant seeks to renew a prior motion which resulted in the dismissal of his claim. He has submitted an affirmation (see Exhibit to Items 1,2) from another inmate, one Eugene Jackson, supporting his contention that he was “set up” by a correction officer. Pursuant to Rule 2221(e)(2), a motion for leave to renew must be “based upon new facts not offered on the prior motion that would change the prior determination” and, pursuant to Rule 2221(e)(3), “shall contain reasonable justification for the failure to present such facts on the prior motion.”

The prior decision and order of this Court dismissing the claim was based upon the Court’s determination that the defendant was entitled to absolute immunity for discretionary decisions made in the disciplinary hearing process. In its decision and order, the Court found that claimant did not allege or establish that the defendant violated any of its own rules and regulations in conducting the hearing which resulted in his confinement to SHU, or that the defendant exceeded the scope of its authority in conducting such proceeding. The Court dismissed the claim based upon the absolute immunity provided by Arteaga (supra).

In this application, although claimant has submitted an affirmation from another inmate to support his contention that he was “set up”, claimant has not provided any evidence that the defendant violated any of its rules and regulations in conducting the hearing, or that it exceeded the scope of its authority in the conduct of the proceeding. Claimant has not therefore offered any new facts or evidence that would change the prior determination of the Court.

Accordingly, it is

ORDERED, that Motion No. M-72322 is hereby DENIED in its entirety.


December 18, 2006
Syracuse, New York

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




[1]. In response to the correspondence of Assistant Attorney General Dillon dated October 11, 2006 (Item 3), claimant submitted a Notice of Motion and “Motion to Strike Defendant’s Answer dated 10/11/2006". As indicated herein, the Court has considered these documents as claimant’s Reply.
[2]. See Decision and Order, Larocco v State of New York, Ct Cl, July 20, 2005, Midey, J., Claim No. 110552, Motion Nos. M-69931, and M-70004, (UID #2005-009-035). Unpublished decisions and selected orders of the Court of Claims are available via the Internet at http://www.nyscourtofclaims.state.ny.us/decisions.