New York State Court of Claims

New York State Court of Claims

FLEMMING v. THE STATE OF NEW YORK et. al., #2009-038-567, Claim No. 115320, Motion No. M-76841


Claimant's motion to vacate judgment on prior order denied. Construed as a motion to renew the prior motion (CPLR 2221[e][2], claimant did not offer new facts that would change the prior determination. Defendant's request for affirmative relief in the nature of dismissal of the claim denied. Request not noticed as a motion, and, in any event, defendant merely reiterates contentions raised on the initial motion

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:
Defendant’s attorney:
ANDREW M. CUOMO, Attorney General of the State of New York
By: Paul F. Cagino, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
September 21, 2009

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant, an individual incarcerated at Upstate Correctional Facility, filed this claim on June 2, 2008 seeking compensation for legal paperwork that was allegedly taken from his cell at Upstate Correctional Facility during a search by correction officers on April 29, 2008. The claim is in the nature of an inmate bailment (i.e. lost property) claim, and also includes other allegations relating to the conduct of the cell search and alleged confiscation of his property. By Decision and Order filed November 19, 2008, the Court granted that part of defendant’s motion to dismiss the claim that sought dismissal of the bailment cause of action for failure to exhaust administrative remedies as required by Court of Claims Act § 10(9). The “various other causes of action” were not dismissed because “defendant did not move to dismiss the claim on the grounds that this Court does not have jurisdiction to hear those other causes of action” (Flemming v State of New York, UID # 2008-038-618, Claim No. 115320, Motion No. M-75197, DeBow, J. [Oct. 2, 2008]). Claimant now moves for an order “vacateing [sic] judgement,” and he appends a copy of a document assertedly demonstrating that he has exhausted his administrative remedies. Defendant “joins claimant’s motion to the extent that it asks the Court to re-examine the claim and defendant’s motion to dismiss, and respectfully requests that the Court vacate its decision and order (M-75197), and issue a new order dismissing the claim in its entirety” (Cagino Affirmation, ¶ 4). Claimant’s motion, although noticed as a motion to vacate the judgment, is actually a motion to renew a prior motion because it is “based upon new facts not offered on the prior motion that would change the prior determination” (CPLR 2221[e][2]). Here, claimant offers evidence that his administrative remedies with respect to his bailment claim were exhausted upon the denial of his administrative appeal on March 17, 2009. This evidence demonstrates beyond doubt that claimant’s administrative remedies were not exhausted when he filed the instant claim on June 2, 2008 (see Court of Claims Act § 10[9] [a bailment claim “may not be filed unless and until the inmate has exhausted the personal property claims administrative remedy”] [emphasis supplied]; see also McKinley v State of New York, UID # 2009-038-502, Claim No. 115638, Motion No. M-75597, DeBow, J. [Jan. 8, 2009]), and thus, the document would not change the Court’s prior determination to dismiss the bailment claim for failure to exhaust administrative remedies. Accordingly, claimant’s motion will be denied.[1]

Turning to defendant’s request for affirmative relief in the nature of dismissal of the entire claim, the Court notes that defendant has not cross-moved for such affirmative relief (see CPLR 2215). Although such an omission is not necessarily fatal to defendant’s request where, as here, the nature of the relief sought is set forth in defendant’s papers and addressed in reply by claimant (see Fox Wander West Neighborhood Assoc. v Luther Forest Community Assoc., 178 AD2d 871, 872 [3d Dept 1991]; Haskell v State of New York, 81 AD2d 953, 953 [3d Dept 1981]), defendant has not demonstrated any basis for the requested relief. As noted above, a motion to renew a prior motion pursuant to CPLR 2221(e)(2) requires a showing that there are new facts that would change the prior determination, and here, defendant offers none. To the extent that defendant’s request could be considered as a motion to reargue a prior motion, CPLR 2221(d)(2) states that such a motion “shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion.”
A motion to reargue is one which seeks to persuade the court that its ruling should be reconsidered because the court ruled incorrectly upon the submissions that were before it (Peak v Northway Travel Trailers, Inc., 260 AD2d 840, 841 [3d Dept 1999]). “The motion is not designed to afford an unsuccessful party successive opportunities to reargue issues previously decided or to present arguments different from those originally asserted” (Matter of Mayer v National Arts Club, 192 AD2d 863, 865 [3d Dept 1993]; see also Rubinstein v Goldman, 225 AD2d 328 [1st Dept 1996], lv denied 88 NY2d 815 [1996]; Pahl Equip. Corp. v Kassis, 182 AD2d 22 [1st Dept 1992], lv denied, lv dismissed 80 NY2d 1005 [1992]; Foley v Roche, 68 AD2d 558, 568 [1st Dept 1979]
). Defendant’s request for relief on the present motion is unsupported by any contention that the Court overlooked or misapprehended any matter of fact or law in discerning additional causes of action in the claim[2] in deciding the prior motion. Indeed, defendant expressly states that it is merely reiterating contentions raised on the initial motion (see Cagino Affirmation, ¶ 9). Accordingly, defendant’s request for dismissal of the claim in its entirety will not be granted. In sum, it is

ORDERED, that claimant’s motion No. M-76841 is DENIED.

September 21, 2009
Albany, New York

Judge of the Court of Claims

Papers considered

(1) Claim No. 115320, filed June 2, 2008;

(2) Decision and Order dated October 2, 2008, UID #2008-038-618, DeBow, J.;

(3) Notice of Motion, No. M-76841, with exhibits;

(4) Correspondence of Woodrow Flemming, dated June 17, 2009;

(5) Affirmation of Paul F. Cagino, AAG, dated July 9, 2008 [sic], with Exhibits A-F;

(6) Second Declaration Memorandum of Law Regarding Previous Motion Cross Moving

for Judgment and Opposing Defements [sic] Reply Affirmation, dated July 13, 2009,

with exhibits.

[1]. To the extent that claimant requests summary judgment in his reply papers on the instant motion, such relief will not be granted. Claimant’s motion is not noticed as one for summary judgment, and a request for new relief is not properly made for the first time in reply papers.
[2]. Defendant continues to take issue with the propriety of “additional causes of action in [claimant’s] declaration in opposition to defendant’s motion to dismiss the claim” (Cagino Affirmation, ¶ 9), but does not address the Court’s determination that “the claim is capable of being construed as stating a cause of action sounding in bailment and also various other causes of action” (Flemming v State of New York, supra).