New York State Court of Claims

New York State Court of Claims

JOHNSON v. THE STATE OF NEW YORK , #2007-044-522, Claim Nos. 110504, 110281, Motion No. M-72752


Claimant's motion to vacate is actually motion to reargue inmate claim for delayed visitation and other claims previously dismissed by the Court; motion to reargue denied.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
110504, 110281
Motion number(s):
Cross-motion number(s):

Claimant’s attorney:
Defendant’s attorney:
HON. ANDREW M. CUOMO, ATTORNEY GENERALBY: Joseph F. Romani, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
April 11, 2007

Official citation:

Appellate results:

See also (multicaptioned case)


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 [1979]).

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.[1] 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] [2]; see generally Foley v Roche, supra).[2] 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 (see CPLR 2221 [e] [2]; Foley v Roche, supra at 568).

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 [2003]). 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] [2]; 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] [2]; Foley v Roche, supra at 568).

Claimant’s motion M-72752 is denied in its entirety.

April 11, 2007
Binghamton, New York

Judge of the Court of Claims

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

1) Notice of Motion to Vacate a Prior Order filed on December 29, 2006; Affidavit of Johnathan Johnson sworn to on December 7, 2006; and Memorandum of Law dated December 7, 2006.

2) Affirmation in Opposition of Joseph F. Romani, AAG, dated January 12, 2007.

[1]. 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 Facility staff]).
[2]. While the Department of Correctional Services (DOCS) may not suspend visitation privileges as a disciplinary measure for non-visitation related misconduct (see Kozlowski v Coughlin, 871 F2d 241 [2d Cir 1989]), “[i]nmate visitation is not a liberty interest entitled to the protection of either the federal or state constitutions” (Matter of Encarnacion v Goord, 8 AD3d 850 [2004]; see also Matter of Grigger v Goord, 27 AD3d 803 [2006], lv denied 7 NY3d 702 [2006]; Matter of Vasquez v Coombe, 238 AD2d 631 [1997]).