New York State Court of Claims

New York State Court of Claims
MCPHERSON v. THE STATE OF NEW YORK, # 2010-015-115, Claim No. 116270, Motion No. M-77318

Synopsis

Claimant's motion to reargue prior motion for partial summary judgment on issue of liability was denied. Claimant's motion regarding date PRS term ended was not sufficiently supported by admissible evidence. Request for change of venue was also denied.

Case information

UID: 2010-015-115
Claimant(s): MARK McPHERSON
Claimant short name: MCPHERSON
Footnote (claimant name) :
Defendant(s): THE STATE OF NEW YORK
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 116270
Motion number(s): M-77318
Cross-motion number(s):
Judge: FRANCIS T. COLLINS
Claimant's attorney: Seidner, Rosenfeld & Guttentag, LLP
By: Larry Rosenfeld, Esquire
Defendant's attorney: Honorable Andrew M. Cuomo, Attorney General
By: Thomas R. Monjeau, Esquire
Assistant Attorney General
Third-party defendant's attorney:
Signature date: March 2, 2010
City: Saratoga Springs
Comments:
Official citation:
Appellate results:
See also (multicaptioned case)

Decision

Claimant moves pursuant to CPLR 2221 to reargue and renew his prior motion for partial summary judgment on the issue of liability and for a change of venue from the Albany District to the New York District of the Court of Claims. For the reasons which follow, the motion is denied.

Claimant seeks damages for wrongful confinement arising from the alleged erroneous imposition of a two-year term of postrelease supervision (PRS) by the Department of Correctional Services (DOCS) rather than the one-year term imposed by the sentencing court. As set forth in this Court's prior Decision and Order dated September 9, 2009, claimant was sentenced to a two-year determinate prison term with one year of PRS on July 17, 2006. Claimant was released from prison on July 12, 2007 at which time a two-year period of PRS was administratively imposed. Claimant was declared delinquent for violating the conditions of his parole on January 18, 2008 and, following a parole hearing on April 15, 2008, his parole was revoked and restored. On November 15, 2008 claimant was arrested for a crime involving a firearm following which he was arraigned and remanded to the custody of the Suffolk County Sheriff's Department in lieu of cash bail. He was subsequently declared delinquent in abiding by the condition of his parole and a parole warrant was issued on November 17, 2008. Probable cause for the parole violation was found and a final hearing was scheduled for December 16, 2008. In the meantime a writ of habeas corpus was filed in which it was alleged that the one-year term of PRS expired on November 9, 2008. A hearing with respect to the habeas corpus petition was adjourned several times to December 24, 2008.

Claimant's prior motion for summary judgment was supported, inter alia, by claimant's counsel's affirmation in which he averred that the one-year term of PRS expired on October 9, 2008 (prior to the date of claimant's arrest), the minutes of the sentencing court establishing that the claimant was only subject to a one-year term of PRS, various parole reports, claimant's affidavit in which he averred that he was released from incarceration on December 24, 2008 and a print out from the DOCS' website reflecting November 9, 2008 as the maximum expiration date of claimant's PRS term.

In denying the claimant's motion for partial summary judgment on the issue of liability, the Court held that while DOCS is not immune from liability for ministerial errors in the performance of sentencing calculations, claimant failed to make a prima facie showing of his entitlement to judgment as a matter of law, stating:

"Claimant established through the submission of the sentencing minutes (Exhibit C) and Certificate of Release to Parole Supervision (Exhibit D) that a two-year term of PRS was erroneously imposed by DOCS rather than the one-year term to which he was sentenced. Claimant failed to establish, however, that the one-year term had expired at the time of his arrest and confinement for the parole violation. While the claimant avers he was released from incarceration on December 24, 2008, he submitted no evidence that it was the alleged PRS error by DOCS that resulted in his release. The minutes of the hearing conducted on December 24, 2008 are missing, and no admissible evidence was submitted establishing the date the PRS term expired. Notably, the printout from the DOCS' website (claimant's Exhibit H) is not in admissible form and conflicts with claimant's counsel's calculation of the PRS maximum expiration date. On this proof, other arrests and interruptions in the claimant's PRS term cannot be ruled out. Absent proof in admissible form as to the maximum expiration date of the claimant's PRS term, the Court is unable to conclude as a matter of law that the claimant was not subject to PRS at the time of his arrest for parole violations. Accordingly, claimant's motion for summary judgment must be denied."

Claimant's request for a change of venue was denied on the ground that the claimant failed to meet his burden of proving that "the convenience of material witnesses and the ends of justice will be promoted by the change" (CPLR 510 [3]). The Court noted in this regard that claimant's affidavit in which he averred that he would be inconvenienced in the event venue is not changed was insufficient support for a change of venue.

A motion to reargue is addressed to the sound discretion of the Court and requires the moving party to demonstrate that the Court overlooked or misapprehended matters of fact or misapplied existing law to the facts presented (see, CPLR 2221 [d][2]; Peak v Northway Travel Trailers, 260 AD2d 840 [1999]; Spa Realty Assoc. v Springs Assoc., 213 AD2d 781 [1995]). Such a motion does not serve as a vehicle to permit the unsuccessful party to argue once again the very questions previously decided (see, Foley v Roche, 68 AD2d 558, 567 [1979], lv denied 56 NY2d 507 [1982]). That branch of claimant's motion seeking reargument is directed solely at the Court's denial of his request for a change of venue. While claimant's counsel avers that all of the witnesses he intends to call at trial are employed by the State of New York and located on Long Island, as noted in the prior order, he failed to identify the potential witnesses or assert the substance of their testimony. Additionally, there is no indication of their willingness to testify or the manner in which they will be inconvenienced by a trial in Albany. Claimant failed to establish that the Court overlooked or misapprehended matters of fact or misapplied existing law to the facts presented. Accordingly, that branch of claimant's motion seeking reargument is denied.

It is well settled that " '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' " (Tibbits v Verizon N.Y., Inc., 40 AD3d 1300, 1302-1303 [2007]; quoting Wahl v Grippen, 305 AD2d 707, 707 [2003]; see also CPLR 2221[e]). "Because renewal is not a second chance freely given to parties who have not exercised due diligence in making their first factual presentation, a party seeking that relief must provide a reasonable justification for the earlier failure to present such facts" (Cippitelli v County of Schenectady, 307 AD2d 658, 658 [2003][internal quotation marks and citation omitted]).

In support of claimant's motion to renew, he submits, for the first time, the transcript of the minutes from the December 24, 2008 hearing regarding claimant's petition for a writ of habeas corpus and a notice to admit requesting written admissions to the "correctness and truth" of certain documents, including the Inmate Information report from the DOCS' website dated January 6, 2009 which reflects a PRS maximum expiration date of November 9, 2008 (claimant's Exhibit F). Claimant's counsel avers and defense counsel does not dispute that defendant admitted the correctness and truth of the DOCS' website printout by its failure to respond to the claimant's notice to admit (see CPLR 3123 [a]). The minutes of the December 24, 2008 hearing reflect that the claimant's application for a writ of habeas corpus was withdrawn because claimant's "parole hold" was lifted (claimant's Exhibit E).

No excuse is offered at to why this new evidence was not submitted in support of the prior motion. Even if the court were to consider the newly offered evidence, however, claimant still failed to establish his entitlement to summary judgment as a matter of law. While claimant established the maximum expiration date of his PRS term (November 9, 2008), he failed to establish what portion, if any, of his allegedly wrongful confinement was attributable to his November 15, 2008 arrest on the criminal charge versus the parole violation. Claimant's counsel's statement in reply that "claimant was paroled on December 18th for his December 15th arrest and rearrested in the evening of December 18th for which he remained incarcerated until December 24th, 2008 . . ." is wholly unsupported by admissible evidence and at odds with the proof submitted in support of the motion (Reply Affirmation, p. 2).

Accordingly, claimant's motion to reargue and renew his prior motion for partial summary judgment and a change of venue is denied.

March 2, 2010

Saratoga Springs, New York

FRANCIS T. COLLINS

Judge of the Court of Claims

The Court considered the following papers:

  1. Notice of motion dated October 9, 2009;
  2. Affirmation of Larry Rosenfeld dated October 9, 2009 with exhibits;
  3. Affirmation of Thomas R. Monjeau dated October 27, 2009;
  4. Reply affirmation of Larry Rosenfeld dated November 5, 2009.