New York State Court of Claims

New York State Court of Claims

JOHNSON v. THE STATE OF NEW YORK, #2009-044-502, Claim No. 112789, Motion No. M-75673


Synopsis


Inmate claimant’s motion for “Rehearing and Leave to Amend Claim” is denied.

Case Information

UID:
2009-044-502
Claimant(s):
JOHNATHAN JOHNSON
Claimant short name:
JOHNSON
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
112789
Motion number(s):
M-75673
Cross-motion number(s):

Judge:
CATHERINE C. SCHAEWE
Claimant’s attorney:
JOHNATHAN JOHNSON, pro se
Defendant’s attorney:
HON. ANDREW M. CUOMO, ATTORNEY GENERALBY: Roberto Barbosa, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
January 14, 2009
City:
Binghamton
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant, an inmate proceeding pro se, filed this claim which asserted that two separate disciplinary sentences of being placed on a restricted diet were wrongfully imposed as the result of two discrete disciplinary hearings. Defendant State of New York (defendant) answered. The Court previously granted defendant’s motion for summary judgment, and denied claimant’s cross motion for leave “to Amend the Bill of Particular [sic]” as moot (Johnson v State of New York, Ct Cl, July 24, 2008, Schaewe, J., Claim No. 112789, Motion No. M-74850, Cross Motion No. CM-74899 [UID # 2008-044-566]).[1] Claimant now moves “For Rehearing and Leave to Amend Claim.” Defendant opposes the motion.

Claimant now requests permission to file an amended claim to include a cause of action for medical malpractice or medical negligence based upon his allegation that the facility health care staff medically cleared him to be placed on a restricted diet even though he is allergic to milk – which may be an ingredient in the “diet loaf.” Claimant also submits a copy of DOCS Directive 4932 to establish that the Court should have granted his previous motion to amend the claim to include a cause of action that defendant violated its own rules and regulations.

Defendant opposes the motion on the grounds that it does not meet the requirements of either a motion to reargue or a motion to renew.

Although there is no such procedural device as a “motion for rehearing,” the Court will treat claimant’s motion as an application for reargument or renewal. To the extent that claimant seeks reargument of the Court’s prior Decision and Order, it must be denied. CPLR 2221 (d) (3) requires that a motion to reargue “shall be made within [30] days after service of a copy of the order determining the prior motion and written notice of its entry.” Defendant mailed a copy of the Decision and Order to claimant on August 19, 2008 (Affirmation of Assistant Attorney General [AAG] Roberto Barbosa, Esq., in Opposition to Claimant’s Motion for Rehearing and Leave to Amend Claim, ¶ 13, Exhibit A). Because service of the Decision and Order with notice of entry was accomplished by mail, claimant was entitled to an additional five days in which to make this motion to reargue (see CPLR 2103 [b] [2]). Accordingly, the motion for reargument was required to be made on or before September 23, 2008. However, this motion was not made until October 6, 2008 when it was mailed to the Attorney General’s Office, 13 days after the expiration of the statutorily-mandated period within which to make such a motion. To the extent that claimant seeks reargument, the motion is not timely, and thus must be denied.[2]

To the extent claimant’s motion seeks renewal, it is also without merit. “[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” (Wahl v Grippen, 305 AD2d 707, 707 [2003]; see CPLR 2221 [e]; Tibbits v Verizon N.Y., Inc., 40 AD3d 1300, 1302-1303 [2007]). Claimant states that the ingredients contained in the “diet loaf” were unknown to him prior to this Court’s decision in Johnson v State of New York (Ct Cl, Aug. 1, 2008, Schaewe, J., Claim No. 112759, Motion No. M-74851, Cross Motion No. CM-74898 [UID # 2008-044-567]). Claimant asserts that because said ingredients include whole and packaged milk, and that he is lactose intolerant (allergic to milk), he should be allowed to add a cause of action alleging that it was improper for defendant’s medical staff to approve his placement on this restricted diet.

Claimant misconstrues the Court’s Decision and Order in Johnson v State of New York (id.). In that case, “neither party [had] provided the Court with the precise ingredients of the ‘diet loaf’, ” and the Court, citing Matter of Trammell v Coombe (170 Misc 2d 471, 475 [1996]), specifically stated that “at one time, the ‘Nutriloaf’ used in the State’s correctional facilities consisted of whole wheat flour, sugar, carrots, potatoes, whole and packaged milk, and yeast” (Johnson v State of New York, Ct Cl, Aug. 1, 2008, Schaewe, J., Claim No. 112759, Motion No. M-74851, Cross Motion No. CM-74898 [UID # 2008-044-567], supra n 2 [emphasis supplied]). Claimant has submitted absolutely no evidence concerning the ingredients that may have been contained in the “diet loaf” which he actually consumed during the restrictive diet imposed with respect to the disciplinary decisions at issue. Absent either newly discovered evidence or a change in the law which would affect the Court’s previous determination, renewal is not proper (CPLR 2221 [e] [2]).

Claim No. 112789 has already been dismissed (Johnson v State of New York, Ct Cl, July 24, 2008, Schaewe, J., Claim No. 112789, Motion No. M-74850, Cross Motion No. CM-74899 [UID # 2008-044-566], supra). Consequently, that portion of claimant’s motion which seeks to amend the claim is denied as moot.

Accordingly, claimant’s Motion for Rehearing and Leave to Amend Claim is denied in its entirety (CPLR 2221 [d], [e]; see generally Foley v Roche, supra).


January 14, 2009
Binghamton, New York

HON. CATHERINE C. SCHAEWE
Judge of the Court of Claims


The following papers were read on claimant’s motion:

1) Notice of Motion filed on October 9, 2008; Affidavit of Johnathan Johnson sworn to on October 1, 2008, and attached exhibit.

2) Affirmation in Opposition of Roberto Barbosa, AAG, dated November 10, 2008, and attached Exhibit A.

Filed papers: Claim filed on September 20, 2006; Verified Answer filed on November 2, 2006.


[1]. The Court treated claimant’s cross motion as one for leave to amend the claim (and will refer to it as such throughout this Decision and Order) because claimant sought to include an additional cause of action for violation of the Department of Correctional Services (DOCS) Directive 4932.
[2]. Even if the Court were to address the merits of the motion, it would nevertheless be denied because claimant has not established that the Court misapprehended or overlooked any relevant facts or misapplied the controlling law (CPLR 2221 [d] [2]; see generally Foley v Roche, 68 AD2d 558, 567-568 [1979]).