New York State Court of Claims

New York State Court of Claims

URENA v. THE STATE OF NEW YORK, #2007-009-041, Claim No. 109727, Motion No. M-73531


Synopsis


Claimant’s motion to renew and/or reargue was denied.

Case Information

UID:
2007-009-041
Claimant(s):
RAFAEL URENA
Claimant short name:
URENA
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
109727
Motion number(s):
M-73531
Cross-motion number(s):

Judge:
NICHOLAS V. MIDEY JR.
Claimant’s attorney:
RAFAEL URENA, Pro Se
Defendant’s attorney:
HON. ANDREW M. CUOMO
Attorney General
BY: Joel L. Marmelstein, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant’s attorney:

Signature date:
December 10, 2007
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant, an inmate appearing pro se, has brought this motion seeking to renew and/or reargue this Court’s prior Decision and Order which denied his application for summary judgment. The following papers were considered by the Court in connection with this motion:
Notice of Motion, Affidavit in Support, with Exhibits 1,2


Affirmation in Opposition 3

Reply 4

Filed Papers: Claim, Verified Answer, Decision and Order to Motion Nos. M-71225/M-71364.

In his filed claim, claimant seeks damages for personal injuries allegedly suffered by him in an inmate-on-inmate assault, which occurred on September 3, 2003, when claimant and his assailant were incarcerated at Oneida Correctional Facility. Claimant alleges that the State had prior notice that he was potentially subject to an assault by this assailant, and failed to take appropriate steps to prevent the attack.

Claimant previously brought a motion (Motion No. M-71225) seeking an order granting him summary judgment on this claim. By a Decision and Order dated May 23, 2006, his application was denied by this Court.

In that Decision and Order, the Court noted that claimant had submitted affidavits from two fellow inmates in an attempt to establish that the State had prior notice of a potential assault against claimant. The Court further noted, however, that the defendant had submitted an affidavit from a correction officer directly contradicting the statements set forth in those affidavits. Based on the contradictory affidavits submitted, this Court found that a material issue of fact existed with regard to potential State liability, and therefore denied claimant’s application for summary judgment.

In this motion, claimant has submitted an affidavit from a third inmate, as well as various other documents, in further support of his allegation that the State had prior notice of this potential assault, and therefore seeks to renew and/or reargue his prior motion seeking summary judgment.

It is well settled that a motion to renew shall be based upon new facts not offered on the prior motion or shall demonstrate that there has been a material change in the law that would change the prior determination (CPLR Rule 2221[e][2]). In this particular matter, there has been no material change in the law, and despite the additional affidavit and documentation submitted by claimant, he has failed to offer any new facts which would alter this Court’s prior determination that an issue of material fact (i.e., prior notice) exists which prevents this Court from granting the requested relief of summary judgment.

To the extent that claimant’s motion may be deemed a motion for re-argument, it must also fail as well. A motion to reargue is “designed to afford a party an opportunity to establish that the court overlooked or misapprehended the relevant facts, or misapplied any controlling principle of law.” (Foley v Roche, 68 AD2d 558, 567; CPLR 2221[d]). Such a motion is not casually granted since it is not a tool to “afford an unsuccessful party successive opportunities to reargue issues previously decided....” (Matter of Mayer v National Arts Club, 192 AD2d 863, 865). Here, claimant has made no showing to indicate that the court overlooked any facts or law originally presented that warrants reargument of this Court’s prior Decision and Order.

Therefore, based on the foregoing, it is

ORDERED, that Motion No. M-73531 is hereby DENIED.

December 10, 2007
Syracuse, New York

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