New York State Court of Claims

New York State Court of Claims

GREEN v. THE STATE OF NEW YORK, #2007-044-517, Claim No. None, Motion No. M-72663


Synopsis


Claimant's motion to reargue the Court's denial of his summary judgment motion is denied, where the previous denial was based on claimant's filing of a “notice of motion for summary judgment in lieu of a complaint,” rather than filing and serving a claim.

Case Information

UID:
2007-044-517
Claimant(s):
SHAWN GREEN
Claimant short name:
GREEN
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
None
Motion number(s):
M-72663
Cross-motion number(s):

Judge:
CATHERINE C. SCHAEWE
Claimant’s attorney:
SHAWN GREEN, pro se
Defendant’s attorney:
HON. ANDREW M. CUOMO, ATTORNEY GENERALBY: Joseph F. Romani, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
March 5, 2007
City:
Binghamton
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant, an inmate proceeding pro se, moves for reargument of this Court’s denial of his prior motion for summary judgment in lieu of complaint. Defendant State of New York (defendant) opposes the motion.

Claimant seeks recovery for personal property (his “court bag”) allegedly lost when he was returned to Attica Correctional Facility from a court appearance on March 13, 2006 at Elmira Correctional Facility. After denial of both his administrative claim and his subsequent appeal, claimant filed a notice of motion for summary judgment in lieu of complaint. Claimant attached an affidavit in support, a memorandum of law, an inventory sheet for a court bag, and an inmate claim form as supporting documentation. This Court held that claimant’s failure to file a claim and serve it upon the Attorney General deprived the Court of subject matter and personal jurisdiction. Accordingly, the motion for summary judgment in lieu of complaint was denied.[1]

Claimant contends that the Court misapplied a controlling principle of law by holding that an action had not been commenced instead of converting this motion into an action. Claimant also argues that the Court “overlooked defendant’s assertion that material facts exist for cause of action and provided no sufficient evidentiary proof in rebuttal.” The Court held that claimant’s failure to file and serve a claim in this matter was a fatal jurisdictional flaw. Claimant has not established in this motion that the Court misapplied any controlling principle of law. In the event that claimant may be arguing that he made a prima facie showing of entitlement to judgment as a matter of law, and that defendant failed to submit sufficient evidence to rebut such showing, claimant has failed to establish that the Court misapprehended or overlooked any relevant facts. Consequently, reargument is not available (CPLR 2221[d] [2]; see generally Foley v Roche, 68 AD2d 558, 567-568 [1979]).

Claimant’s Motion No. M-72663 for reargument is denied.


March 5, 2007
Binghamton, New York

HON. CATHERINE C. SCHAEWE
Judge of the Court of Claims


The following papers were read on claimant’s motion for reargument:

1) Notice of Motion filed on December 13, 2006; Affidavit of Shawn Green sworn to on December 5, 2006; and Memorandum of Law dated December 5, 2006.

2) Affirmation in Opposition of Joseph F. Romani, AAG, dated December 14, 2006.


[1]. This Court also held that the procedural device of a motion for summary judgment in lieu of complaint was not authorized in the Court of Claims, and that in any event, claimant’s papers did not include any document(s) which could be construed as an instrument for the payment of money only.