New York State Court of Claims

New York State Court of Claims

GREEN v. THE STATE OF NEW YORK, #2009-015-165, Claim No. 113634, Motion No. M-76117


Pro se inmate's motion for reargument was denied.

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:
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:
April 28, 2009
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant, an inmate proceeding pro se, moves to reargue his prior motion for partial summary judgment and the defendant's cross-motion for dismissal of the claim for failure to state a cause of action pursuant to CPLR 3211 (a) (7). The motion is denied. In its Decision and Order filed December 4, 2008 the Court denied the claimant's motion for summary judgment and granted the defendant's cross-motion to the extent of dismissing the claimant's cause of action for breach of contract.

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]; Spa Realty Assocs. v Springs Assocs., 213 AD2d 781; Peak v Northway Travel Trailers, 260 AD2d 840). 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, lv denied 56 NY2d 507).

Claimant has failed to establish that this Court misapprehended the facts or misapplied the law in arriving at its determination on the prior motion. Claimant first argues that the Court overlooked discovery filed with the Clerk's office. CPLR 2214 (c) requires that "[o]nly papers served in accordance with the provisions of this rule shall be read in support of, or in opposition to, the motion . . . " Claimant's suggestion that the Court should ferret out papers filed with the Clerk which might support his cause is incorrect, to say the very least. In fact, claimant's failure to support the instant motion to reargue with copies of the prior motions requires denial of the motion to reargue on this basis alone.

Claimant argues that summary judgment on his cause of action for ministerial neglect should have been granted based on the authority of Kagan v State of New York, 221 AD2d 7 [1996]). As stated in the Court's prior order, however, whether the cause of action is one for medical malpractice or medical negligence, expert evidence is required to establish that the alleged negligence contributed to claimant's injuries (see e.g. Wood v State of New York, 45 AD3d 1198 [2007]). No such evidence was submitted in support of the claimant's motion for summary judgment in this case. Next, claimant contends that the Court misunderstood the basis for his breach of contract claim. Claimant alleges in his supplemental claim a cause of action for breach of contract arising out of a 2002 amendment to the package restriction policy contained in Directive 4921. The Court dismissed this cause of action based upon the broad grant of authority vested in the Commissioner of Correctional Services with regard to the implementation of policies relating to the security and management of state prisons (see Correction Law § 112 (1) and § 137 [2]). Pursuant to this grant of authority, the Commissioner may either extend privileges to inmates or restrict them as he deems proper (id; 7 NYCRR §§ 724.2 [b] and 724.3 [a] [1]). As the decision to change the package restriction policy was a discretionary one, claimant could not prevail on his cause of action for breach of contract and this portion of his claim was, therefore, dismissed. Claimant has failed to establish that the Court misapprehended the law or the facts in reaching this conclusion.

Based on the foregoing, claimant's motion to reargue is denied.

April 28, 2009
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated December 23, 2008;
  2. Affidavit of Shawn Green sworn to December 23, 2008;
  3. Undated memorandum of law of Shawn Green;
  4. Affirmation of Michael T. Krenrich dated January 13, 2009;
  5. Reply of Shawn Green sworn to January 20, 2009.