New York State Court of Claims

New York State Court of Claims

PETTUS v. THE STATE OF NEW YORK, #2008-015-073, Claim No. 113867, Motion No. M-74944


Synopsis


Claimant's motion to renew and reargue prior motion dismissing claim was denied.

Case Information

UID:
2008-015-073
Claimant(s):
JAMES PETTUS
Claimant short name:
PETTUS
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
113867
Motion number(s):
M-74944
Cross-motion number(s):

Judge:
FRANCIS T. COLLINS
Claimant’s attorney:
James Pettus, Pro Se
Defendant’s attorney:
Honorable Andrew M. Cuomo, Attorney General
By: Roberto Barbosa, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
September 26, 2008
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant, an inmate proceeding pro se, moves, in effect, for reargument[1] or renewal of this Court's prior Decision and Order dated March 24, 2008, granting the defendant's cross-motion for summary judgment and dismissing the claim. The claim alleges the following:
"PLAINTIFF WHO IS [NON-VIOLENT] AND SUFFERS SERIOUS MEDICAL CONDITIONS AND PLACED IN THE 'CARE', 'CUSTODY' AND 'CONTROL' OF [D.O.C.] WHICH IS A STATE GOVERNMENTAL ENTITY. THE OFFICIALS [WILLFULLY] [PURPOSEFULLY] WITH [INTENT] DENIES PLAINTIFF AND OTHER [BLACK] INMATES THERE [SIC] PROCEDURAL DUE PROCESS PROTECTED UNDER THE 14TH AMENDMENT. PLACING CLAIMANT INTO [SHU] AND KEEP-LOCKED STATUS, CAUSING [INJURY] [HARM] BOTH PHYSICALLY AND PSYCHOLOGICALLY. BY EXTENDED KEEP-LOCKED TIME OR PLACEMENT INTO [SHU] WITHOUT COMMITTING SERIOUS PRISON INFRACTIONS. SEE TITLE 7 NYCRR 280.2[B].

THIS [POLICY] AND [CUSTOM] IS ENFORCED AS A [LAW] WHEN IN FACT [VOLATIVE] (SIC) OF ESTABLISHED LAW AND DUE PROCESS. THIS [PRACTICE] IS SO SEVERE AND WIDESPREAD CAUSING CLAIMANT AND OTHER BLACK INMATES [PSYCHOLOGICAL] TORMENT AND TORTURE, WHICH IS ON-GOING AND CURRENT. DENYING CLAIMANT AND OTHER BLACK INMATES [DUE PROCESS] AND [EQUAL PROTECTION] OF [STATE] LAW [THEREBY] VOLATIVE (SIC) OF A CONSTITUTIONAL RIGHT PROTECTED UNDER THE 14TH AMENDMENT OF THE U.S. CONSTITUTION, WHICH [GOVERNS] ALL FIFTY (50) STATES."
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 Assoc. v Springs Assoc., 213 AD2d 781 [1995]). In granting the defendant's cross-motion to dismiss the claim, the Court accorded the claimant the benefit of every favorable inference in construing the claim and determined that the only cognizable legal theories discernable from the claim were causes of action for violations of the New York State and United States Constitutions. The Court found that the claim failed to assert a viable tort cause of action under the New York State Constitution because such a remedy was unnecessary to ensure the realization of the claimant's rights in light of the availability of a viable alternative remedy in the form of an article 78 proceeding challenging the disciplinary determinations rendered against the claimant (citing Rodriguez v State of New York, Ct Cl, August 9, 2007 [Claim No. 110305, Motion No. M-73379, UID #2007-015-222], Collins, J. unreported; Ahlers v State of New York, Ct Cl, June 27, 2000 [Claim No. 96505, UID # 2000-014-108], Nadel, J., unreported; Rossi v State of New York, Ct Cl, July 9, 2001 [Claim No. 104004, Motion No. M-63481, UID # 2001-019-542], Lebous, J., unreported). While the claimant attempts to distinguish the types of relief available in a proceeding pursuant to article 78 from the damages remedy available in a tort claim, he cites no authority for the proposition that an article 78 proceeding is either unavailable, or inadequate for purposes of vindicating his constitutional rights. In sum, claimant failed to demonstrate that the Court overlooked or misapprehended matters of fact or misapplied the law. Accordingly, to the extent the claimant's motion may be considered one for reargument, it is denied.

It is well settled that " 'a motion to renew must be based upon newly discovered evidence which existed at the time the prior motion was made, but was unknown to the party seeking renewal, along with a justifiable excuse as to why the new information was not previously submitted' " (Tibbits v Verizon N.Y., Inc., 40 AD3d 1300, 1302-1303 [2007], quoting Wahl v Grippen, 305 AD2d 707, 707 [2003]; see also CPLR 2221[e]). Claimant sets forth no new evidence in support of that branch of his motion requesting renewal. Claimant's motion for renewal is therefore denied.

Based on the foregoing, claimant's motion for reargument and renewal is denied.


September 26, 2008
Saratoga Springs, New York

HON. FRANCIS T. COLLINS
Judge of the Court of Claims


The court considered the following papers:
  1. Notice of motion dated May 6, 200[8];
  2. Unsworn affidavit of James Pettus dated May 6, 2008;
  3. Affirmation of Roberto Barbosa dated May 20, 2008;
  4. Unsworn affirmation/affidavit of James Pettus dated May 26, 2008.

[1]. Claimant's motion was improperly denominated as one for reconsideration or renewal and the Court will therefore treat it as one for reargument and renewal pursuant to CPLR 2221 (d) and (e).