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 #
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  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
CPLR 2103 [b] ). 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
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
; see CPLR 2221 [e]; Tibbits v Verizon N.Y., Inc., 40 AD3d
1300, 1302-1303 ). 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 ), 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] ).
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,