New York State Court of Claims

New York State Court of Claims

JUSTICE v. THE STATE OF NEW YORK, #2009-015-151, Claim No. 115070, Motion No. M-76036


Pro se inmate's motion to renew and reargue prior motion which granted defendant's motion to dismiss claim was denied. Appropriate procedural vehicle for review of the administrative determination in this case was a proceeding pursuant to article 70 or 78, not a plenary action by the Court of Claims.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant’s attorney:
John D. Justice, Pro Se
Defendant’s attorney:
Honorable Andrew M. Cuomo, Attorney General
By: Paul F. Cagino, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
March 23, 2009
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant moves to reargue and renew that branch of the Court's prior Decision and Order which granted the defendant's cross-motion to dismiss the claim pursuant to CPLR 3211 (a) (7) for failure to state a cause of action and requests that defense counsel be disqualified due to a conflict of interest. Claimant was charged with certain crimes for which he was found not guilty by reason of mental disease or defect. Claimant alleges in the claim that he "is currently to be supervised by the Defendant State of New York, through the New York State Office of Mental Health, by an Order of Conditions pursuant to Criminal Procedure Law § 330.20. Said Order of Conditions was granted by the Hon. Ronald H. Tills on January 3, 2006, (Supreme Court, County of Erie)" (claim, ¶ 4). Claimant alleges that upon the application of the Commissioner of Mental Health for the Order of Conditions and a release order, the Commissioner failed to include both a written service plan for continued treatment and a detailed statement of the extent to which supervision of the claimant was required. He alleges that pursuant to CPL § 330.20 (12) the inclusion of the written service plan in the application for the Order of Conditions was required.

In its prior Decision and Order the Court granted the defendant's dismissal motion as this Court lacks jurisdiction to order the Commissioner of Mental Health to provide a written service plan and a statement of the extent to which supervision is proposed as required by CPL 330.20 (12) (see e.g. Berrian v State of New York, 45 AD3d 995 [2007]). The Court indicated in this regard that article 78 relief in the Supreme Court is the appropriate recourse, which the claimant had unsuccessfully pursued. In a prior proceeding Judge Russell P. Buscaglia specifically found that there was compliance with the statutory requirement that the Order of Conditions "shall" incorporate a written service plan (CPL 330.20 [12]).

The Motion To Reargue

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]). Such a motion does not serve as a vehicle to permit the unsuccessful party to argue once again the very questions previously decided (see, Foley v Roche, 68 AD2d 558, 567 [1979], lv denied 56 NY2d 507 [1982]). Here, the claimant failed to establish that the Court overlooked or misapprehended matters of fact or misapplied existing law to the facts presented.

In support of its motion to reargue the claimant points out that Judge Buscaglia's decision was in connection with a proceeding pursuant to article 70, not article 78, and for the first time submits a copy of the petition which resulted in Judge Buscaglia's decision (see claimant's Exhibit B, pp. 41-51; claimant's Exhibit C, Petition). In addition, claimant alleges that this Court misconstrued his cause of action, which he now characterizes as follows:
"The cause of action in Claim No. 115070 is the fact that OMH is not supervising your Claimant pursuant to CPL 330.20 on the previously issued Order of Conditions. This was admitted to by OMH . . . "

Whether Judge Buscaglia's decision was the result of a proceeding pursuant to article 70 or 78 is of no consequence where it is apparent that the relief claimant is requesting would require review of an administrative determination which has already been the subject of proceedings pursuant to either articles 70 or 78 (see Matter of Salahuddin v Connel, 53 AD3d 898 [2008]; City of New York v State of New York, 46 AD3d 1168 [2007], lv denied 10 NY3d 705 [2008]; Berrian v State of New York, 45 AD3d 995 [2007]). Judge Buscaglia determined in connection with the article 70 proceeding that the written service plan was incorporated into the Order of Conditions pursuant to CPL § 330.20 [12]) and Judge Boller subsequently determined that mandamus relief under article 78 does not lie to compel the respondent therein to apply for re-commitment as the decision to do so was discretionary in nature under CPL § 330.20 (14). Claimant's recourse was a direct appeal from the denial of his petitions, not a plenary action for monetary relief in the Court of Claims (Lublin v State of New York, 135 Misc 2d 419 [1987], affd 135 AD2d 1155 [1987]; Hoffman v State of New York, 42 AD3d 641 [2007]).

Moreover to the extent the claimant now contends that the focus of his claim is the failure of the Office of Mental Health to supervise the claimant in accordance with the Order of Conditions, the result is the same - the requested relief, i.e., compliance with the Order of Conditions, requires review of an administrative determination over which this Court lacks jurisdiction (see Berrian v State of New York, supra; City of New York v State of New York, supra).

The Motion To Renew

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]). "Because renewal is not a second chance freely given to parties who have not exercised due diligence in making their first factual presentation, a party seeking that relief must provide a reasonable justification for the earlier failure to present such facts" (Cippitelli v County of Schenectady, 307 AD2d 658, 658 [2003] [internal quotation marks and citation omitted]).

In support of renewal the only new evidence submitted is the petition filed in support of the habeus corpus proceeding decided by Judge Buscaglia. Nothing in the petition changes this Court's determination that the relief sought herein is outside the jurisdiction of the Court of Claims (see Court of Claims Act § 9).

That branch of the claimant's motion seeking to disqualify defense counsel due to a conflict of interest is denied as moot.

Based on the foregoing, the claimant’s motion is denied in its entirety in accordance with this Decision and Order.

March 23, 2009
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated December 11, 2008;
  2. Affidavit of John D. Justice sworn to December 11, 2008 with exhibits;
  3. Affirmation of Paul F. Cagino dated January 8, 200[9].