New York State Court of Claims

New York State Court of Claims

LAMAGE v. THE STATE OF NEW YORK, #2007-015-179, Claim No. 111068, Motion No. M-72900


Claimant's motion to reargue wrongful confinement claim was denied. Alleged failure to provide Superintendent with confinement report did not provide basis for claim of wrongful confinement nor did the completion of a disciplinary hearing beyond the 14-day limit.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant’s attorney:
Edwin Lamage, Pro Se
Defendant’s attorney:
Honorable Andrew M. Cuomo, Attorney General
By: Michele M. Walls, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
April 10, 2007
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant, an inmate, moves for an order granting leave to reargue his prior motion for summary judgment on his sixth cause of action. The motion is denied. Claimant alleges in his sixth cause of action that he was wrongfully confined for 28 days beginning July 6, 2005 and ending August 2, 2005. The basis for this claim is the contention that the written report of confinement was not timely provided to the Superintendent in violation of 7 NYCRR § 251-1.6(e)(1), and that the disciplinary hearing was not completed within 14 days following the writing of the misbehavior report in violation of 7 NYCRR § 251-5.1(b). By order dated December 22, 2006 this Court denied the claimant's motion for summary judgment on the ground that the alleged failure to timely provide a confinement report to the Superintendent did not implicate a due process safeguard nor affect the proceedings brought against him (cf. Craft v State of New York, 189 Misc 2d 661). In addition, the Court held that a question of fact precluded summary judgment with regard to whether the claimant's disciplinary hearing was conducted in a timely manner.

It is well settled that a motion to reargue is addressed to the sound discretion of the Court and requires the moving party to demonstrate that the Court overlooked or misapprehended matters of fact or misapplied existing law to the facts presented (see CPLR 2221 [d][2]; Peak v Northway Travel Trailers, 260 AD2d 840 [1999]; Spa Realty Assocs. v Springs Assocs., 213 AD2d 781 [1995]). Such a motion does not serve as a vehicle to permit the unsuccessful party to argue once again the very questions previously decided (see Foley v Roche, 68 AD2d 558, 567 [1979], lv denied 56 NY2d 507 [1982]).

The Court is not persuaded by the motion papers that it misapprehended the facts or misapplied the law in arriving at its determination on the prior motion. With respect to the alleged violation of 7 NYCRR § 251-1.6(e)(1), a report to the Superintendent was in fact completed on the date of the confinement and two days later the Superintendent's designee directed that tier assistance be provided. The fact that the report was not denominated a "confinement report" or the like is unavailing where it is clear that the alleged violation neither implicated a due process safeguard nor affected the proceedings brought against the claimant.

With respect to the alleged violation of 7 NYCRR § 251-5.1(b), this section provides for the completion of a hearing within 14 days of the writing of the misbehavior report "unless otherwise authorized by the commissioner or his designee". Here, the record reflects that on July 21, 2005 authorization was obtained to complete the hearing by July 26, 2005. In addition, it has been stated time and again that the regulatory time limits for the completion of a hearing are directory, not mandatory (Matter of Chaney v Selsky, 37 AD3d 983 [2007]; Matter of Chaney v Selsky, 35 AD3d 1109 [2006]; Matter of Johnson v Goord, 297 AD2d 881 [2002]). Accordingly, claimant's motion to reargue is denied.

April 10, 2007
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated January 24, 2007;
  2. Affidavit of Edwin Lamage sworn to January 24, 2007;
  3. Affirmation of Michele M. Walls dated February 16, 2007 with exhibit.