Claimant, an inmate proceeding pro se, previously moved to compel discovery in
13 separate claims. Defendant opposed the motion and cross-moved to dismiss 12
of those claims. This Court issued a decision and order dated November 14, 2006
which granted defendant’s cross motion to the extent that Claim Nos.
111983, 110411, 110471, 109372, 110280, 110512, 111009, 111204, 111892 and
109864 were dismissed in their entirety. The first cause of action of Claim No.
110504 and the first, third and fourth causes of action of Claim No. 110281 were
also dismissed. Claimant’s motion to compel disclosure was granted only
to the extent that defendant was required to respond to Claimant’s
Disclosure Requests filed on March 29, 2006 in Claim No. 110281, as they
pertained to the second and only remaining cause of action therein. The
remainder of claimant’s motion was denied as moot. Claimant now moves
“To Vacate A Prior Order” with respect to the first cause of action
of Claim No. 110504 and the third and fourth causes of action of Claim No.
110281. Defendant opposes the motion.
Claimant first states that this motion is to vacate a prior order and is
governed by CPLR 5015, but then argues that the Court overlooked the facts and
the law. Contrary to claimant’s contention, however, this motion is for
reargument and is governed by standards relating to motions for reargument
(see CPLR 2221; Foley v Roche, 68AD2d 558, 567-568 ).
With respect to the merits of the motion, the first cause of action in Claim
No. 110504 alleged that claimant’s visitation with his daughter and
grandchild was unduly delayed. The Court held that because visitation is not a
right protected by either the Federal or State Constitutions, claimant’s
allegations failed to state a cause of action.
Claimant has not established that the Court misapprehended or overlooked any
relevant facts or misapplied the controlling law and accordingly, reargument is
not proper (CPLR 2221 [d] ; see generally Foley v Roche,
Moreover, claimant has not
presented any newly discovered material evidence not available at the time of
the original motion, nor has he shown that there has been a change in the law
that would affect the prior determination. Renewal is thus not appropriate
CPLR 2221 [e] ; Foley v Roche, supra
Claimant’s motion to reargue also lacks merit with regard to Claim No.
110281. The third cause of action in that claim alleged that claimant was
improperly denied access to his legal documents from November 3, 2004 to
November 12, 2004. The Court dismissed that cause of action because claimant
failed to allege any damages resulting from such deprivation (Lepkowski v
State of New York, 1 NY3d 201, 207 ). Claimant’s fourth cause
of action alleged that the inmates in the Special Housing Unit (SHU) at
Southport were being served a smaller quantity of food than the inmates in the
prison's general population in violation of DOCS' rules. The Court dismissed
the fourth cause of action based upon claimant’s failure to indicate when
this claim arose, as required by Court of Claims Act §11 (b). While
claimant asserts that the Court overlooked the date of September 2004 that was
contained in his claim, that date appears to be when claimant filed inmate
grievances about the quantity of food served in SHU; it was not alleged in the
claim to have been the date that his cause of action arose. Claimant has failed
to establish that the Court overlooked any relevant facts or misapplied a
controlling principle of law when it dismissed the third and fourth causes of
action in Claim No. 110281. As a result, reargument is not warranted (CPLR 2221
[d] ; see generally Foley v Roche, supra at 567-568).
To the extent that claimant seeks renewal, his failure to either set forth
newly discovered evidence which was not available on the prior motion or to show
a change in the law which would affect the previous decision is fatal (see
CPLR 2221 [e] ; Foley v Roche, supra at 568).
Claimant’s motion M-72752 is denied in its entirety.
. As the Court stated in the decision dated
November 14, 2006, claimant was not denied his visitation. It merely took place
later than he anticipated (cf. Dawes v State of New York
, Ct Cl, Jan. 14,
2003, Marin, J., Claim No. 102133, Motion No. M-65871, [UID # 2003-016-002]
[where the claimant recovered when his contact visitation was suspended as a
result of his assaultive behavior toward a member of the Sullivan Correctional