New York State Court of Claims

New York State Court of Claims

BANKS v. STATE OF NEW YORK, #2009-039-119, Claim No. 106549, Motion No. M-76063


Synopsis


Defendant’s motion to reargue pursuant to CPLR 2221 with respect to the Court’s order compelling defendant to disclose section IV (C)(7) of directive 4901 is denied. Defendant has not established that the Court overlooked or misapprehended the facts or law, or that it was mistaken when it directed disclosure.

Case Information

UID:
2009-039-119
Claimant(s):
CHRISTOPHER BANKS, 97-A-5382
Claimant short name:
BANKS
Footnote (claimant name) :

Defendant(s):
STATE OF NEW YORK1 1.The Court has, sua sponte, amended the caption to reflect the State of New York as the only proper defendant.
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
106549
Motion number(s):
M-76063
Cross-motion number(s):

Judge:
James H. Ferreira
Claimant’s attorney:
Christopher Banks, pro se
Defendant’s attorney:
Hon. Andrew M. Cuomo
Attorney General of the State of New York
By: Joan MatalavageAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
May 12, 2009
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

By Decision and Order dated November 21, 2008, the Court, upon completing an in camera review, granted in part and denied in part claimant’s motion seeking disclosure of certain directives issued by the New York State Department of Correctional Services (hereinafter “DOCS”) (see Banks v State of New York, Ct Cl, November 21, 2008, UID No. 2008-039-101, Claim No. 106549, Motion No. M-74502). Specifically, the Court directed disclosure of a portion of DOCS directive 4901, sections IV (C) (5), (6) and (7) and denied in full claimant’s request for disclosure of directive 4906. Defendant now moves the Court for permission to reargue claimant’s motion insofar as the Court’s order to disclose section IV (C) (7) of directive 4901 is concerned.[2] No opposing papers were received from claimant.

“ ‘It is well settled that a motion for leave to reargue pursuant to CPLR 2221 is addressed to the sound discretion of the court and is properly granted upon a showing that the court overlooked or misapprehended the facts and/or the law or mistakenly arrived at its earlier decision’ ” (Loris v S&W Realty Corp., 16 AD3d 729, 730 [2005], quoting Peak v Northway Travel Trailers Inc., 260 AD2d 840, 842 [1999]). “Its purpose is not to 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], appeal after remand 86 AD2d 887 [1982], appeal denied 56 NY2d 507 [1982]) or to “afford a party an opportunity to argue a new theory” not asserted in the original motion (Spatola v Tarcher, 293 AD2d 523, 524 [2002]). Moreover, a motion to reargue must be “made on the papers submitted on the original motion” (Phillips v Village of Oriskany, 57 AD2d 110, 113 [1977]) and a repetition of arguments or assertions originally made is not the purpose of a motion to reargue (see James v Nestor, 120 AD2d 442, 443 [1986]).

Here, defendant has not established that the Court overlooked or misapprehended the facts or law, or that it was mistaken when it directed disclosure of section IV (C) (7) in directive 4901. In support of the instant motion, defendant relies on an affidavit from a DOCS Deputy Commissioner that disclosure of this particular provision “increases the safety risk for both Correction Officers and the community at large” by providing inmates information about the use of restraints when being transported to locations outside a DOCS facility. However, in opposition to the original motion, defendant raised a similar argument that directive 4901 was a “security item,” which was examined and considered by the Court in its November 2008 decision. Thus, defendant is merely repeating and amplifying its security argument once again, which is not the purpose of reargument (see James v Nestor, supra).

Notwithstanding the absence of a legitimate basis to grant defendant’s motion to reargue, the Court is mindful of the security and public safety issues that may arise from claims originating within correctional facilities. Accordingly, the Court has undertaken a second review of directive 4901, section IV (C) (7), the specific provision at issue, and finds no grounds to modify its November 21, 2008 Decision and Order and bar disclosure of this provision to claimant.


Accordingly, it is hereby ordered that M-76063 seeking to reargue the original motion, and/or for a protective order denying the disclosure of DOCS directive 4901, section IV (C) (7), is denied in its entirety.


May 12, 2009
Albany, New York

HON. JAMES H. FERREIRA
Judge of the Court of Claims


Papers Considered
:
  1. Notice of Motion dated December 30, 2008;
  2. Affidavit in Support of Motion by Joan Matalavage sworn to on December 30, 2008;
  3. Affidavit in Support of Motion by Lucien J. LeClaire sworn to on December 30, 2008.


[2].The Court notes that its November 21, 2008 Decision and Order followed an earlier Decision and Order by the Court dated June 4, 2008, arising from claimant’s motion seeking to compel defendant to disclose or respond to various discovery requests. In the June 2008 decision, the Court granted, inter alia, claimant’s request for in camera review of certain DOCS directives, including directive 4901 .