Motion to dismiss was denied as was cross-motion to compel disclosure.
|Claimant short name:||JOHNSON|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||Alan C. Marin|
|Claimant's attorney:||Johnathan Johnson, Pro Se|
|Defendant's attorney:||Andrew M. Cuomo, Attorney General
By: Gwendolyn Hatcher, Esq., AAG
|Third-party defendant's attorney:|
|Signature date:||October 28, 2009|
|See also (multicaptioned case)|
Defendant moves to dismiss this claim on two grounds, i.e., that it: (1) fails to state a cause of action pursuant to CPLR §3211(a)(7); and (2) was untimely served. Claimant cross-moves for an order compelling disclosure.
In the claim, pro se inmate Johnathan Johnson alleges that on February 20, 2009, he received a letter from "New York State Unified Court System Office of Court Administration Counsel for Administration and Operations, Barbara Zahler-Gringer." According to Mr. Johnson, in the letter, Ms. Zahler-Gringer acknowledged receipt of a letter claimant had previously sent to the Chief Administrative Judge requesting permission to make a Criminal Procedure Law §440.10 motion to vacate the judgment in connection with his underlying criminal conviction. Claimant also states that he was informed in the letter that his request "had been referred to the Supreme Court and claimant should be hearing from the Court soon." Claimant further alleges that on May 6, 2009, he received notice of entry of an order dated April 24, 2009, in which his CPL §440.10 motion was denied on the ground that his motion request "was never forward[ed] to the Administrative Judge['s] chambers for approval . . . [even though] claimant was informed by Ms. Gringer . . . that the motion papers [were] in fact forward[ed] to the Administrative Judge for approval."
Johnson does not annex to his claim or his motion copies of either his request, the letter from Ms. Zahler-Gringer or the April 24, 2009 order denying his §440.10 motion.
Claimant does annex as exhibit 1 to his motion papers a copy of a May 15, 2003 Order denying a previous §440.10 motion he had made, and in such order, Justice Joseph Rosenzweig notes that that was claimant's eighth motion brought pursuant to §440.10. In that regard, §440.10 provides that a judgment of conviction may be vacated at any time pursuant to such statute. Claimant has not argued that he is now precluded from making a further §440.10 motion. In the event that he makes a successful §440.10 motion, he might have a cause of action in this court based on delay in obtaining a vacatur of his conviction. But at this time, he has no viable claim in this court, and Johnathan Johnson has thus failed to state a cause of action for the purposes of CPLR 3211(a)(7).
In view of the foregoing, having reviewed the parties' submissions(1) , IT IS ORDERED that motion no. M-77046 be granted and that claim no. 116856 be dismissed. IT IS FURTHER ORDERED that cross-motion no. CM-77106 be denied as moot.
October 28, 2009
New York, New York
Alan C. Marin
Judge of the Court of Claims
1. The following were reviewed: defendant's notice of motion with affirmation in support and exhibit A; claimant's notice of cross-motion with "Affidavit in Support of Cross-Motion and in Opposition to Motion" with exhibit 1; and defendant's affirmation in opposition to cross-motion.