New York State Court of Claims

New York State Court of Claims

GREEN v. THE STATE OF NEW YORK, #2009-015-133, Claim No. 113099, Motion No. M-75860


Synopsis


Motion to reargue was denied.

Case Information

UID:
2009-015-133
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):
113099
Motion number(s):
M-75860
Cross-motion number(s):

Judge:
FRANCIS T. COLLINS
Claimant’s attorney:
Shawn Green, Pro Se
Defendant’s attorney:
Honorable Andrew M. Cuomo, Attorney General
By: Michael T. Krenrich, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
February 11, 2009
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant, an inmate proceeding pro se, moves (M-75860) for an order granting leave to reargue his prior motion (M-74952) for partial summary judgment on his claims sounding in bailment and negligence, and for wrongful confinement stemming from two separate periods of confinement.[1] The motion is denied. 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 Rule 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 (Foley v Roche, 68 AD2d 558, 567 [1979], lv denied 56 NY2d 507 [1982]).

The Court is unpersuaded that it misapprehended the facts or misapplied the law in arriving at its determination on the prior motion. Claimant’s motion for partial summary judgment was denied on two bases: First, the claimant failed to make a sufficient evidentiary showing to warrant summary judgment in his favor and, second, it was the claimant's third such motion and he failed to offer new evidence or sufficient cause to warrant consideration of a third motion (see e.g. Pavlovich v Zimmet, 50 AD3d 1364, 1365 [2008]). In support of the instant motion to reargue, the claimant asserts that the Court overlooked the exhibits annexed to his motion for summary judgment. The Court has reviewed the prior motion for summary judgment, including the exhibits, and adheres to its prior determination that claimant failed to establish his prima facie entitlement to summary judgment in his third successive motion seeking such relief (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]).

Accordingly, claimant's motion to reargue is denied.


February 11, 2009
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 October 30, 2008;
  2. Affirmation of Shawn Green sworn to October 30, 2008;
  3. Affirmation of Michael T. Krenrich dated November 14, 2008;
  4. Reply of Shawn Green sworn to November 20, 2008.

[1]. By Decision and Order dated October 31, 2007, this Court granted that branch of the claimant's motion which sought partial summary judgment on his wrongful confinement cause of action alleging that the defendant failed to conduct a timely hearing as required by the applicable regulation (see 7 NYCRR § 251-5.1 [a]) (see Green v State of New York, Ct Cl, October 31, 2007 [UID # 2007-015-241, Claim No. 113099, Motion No. M-73701] Collins, J., unreported). It was noted that damages would be tried together with the remaining causes of action.