Motion to reargue denial of motion to compel disclosure and for sanctions, and motion for recusal both denied. Pro se inmate claimant has not shown basis for reargument or any reason for recusal.
|Claimant short name:||KOEHL|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||THOMAS H. SCUCCIMARRA|
|Claimant's attorney:||EDWARD KOEHL, PRO SE|
|Defendant's attorney:||HON. ANDREW M. CUOMO, NEW YORK STATE ATTORNEY GENERAL|
|Third-party defendant's attorney:|
|Signature date:||March 25, 2010|
|See also (multicaptioned case)|
The following papers were read and considered on claimant's motion:
1,2 Notice of Motion; Affidavit in Support of Reargument and Recusal by Edward Koehl, claimant
3-5 Filed Papers: Claim, Answer, Koehl v State of New York, Claim No. 116905, Motion No. M-77261, unreported (Scuccimarra, J., December 18, 2009)
In this claim, Edward Koehl alleges nine causes of action premised upon allegedly invalid disciplinary proceedings and property loss and/or confiscation - specifically a hot pot - occurring in February and March 2009.
MOTION FOR REARGUMENT
In the decision and order denying claimant's motion to compel disclosure and for sanctions, that is the subject of the present motion to reargue, the Court determined:
"This motion was made by service on defendant on or about October 1, 2009 before decision was rendered on the prior motion for a default judgment. After careful review of the papers submitted on the present motion, the Court finds that the motion is premature in that the determination as to whether issue was joined had not been made, no demand preceded such motion, there is no order extant directing discovery, and it is ill-supported as to materiality and relevance under Civil Practice Law and Rules §3101 in any event." [ Koehl v State of New York, Claim No. 116905, M-77261, unreported (Scuccimarra, J., December 18, 2009)].
"A motion for reargument, addressed to the discretion of the court, is designed to afford a party an opportunity to establish that the court overlooked or misapprehended the relevant facts, or misapplied any controlling principle of law. Its purpose is not to serve as a vehicle to permit the unsuccessful party to argue once again the very questions previously decided . . . (citations omitted). Nor does reargument serve to provide a party an opportunity to advance arguments different from those tendered on the original application." Foley v Roche, 68 AD2d 558, 567-568 (1st Dept 1979); Loris v S & W Realty Corp., 16 AD3d 729, 730 (3d Dept 2005); see Civil Practice Law and Rules §2221(d)(2). The papers submitted do not establish that the Court misapplied any controlling principle of law; therefore the motion for reargument of claimant's earlier motion to compel disclosure is denied. Nothing prevents claimant from further pursuing consent discovery by service of his demands upon the defendant - such demands to be filed in the Office of the Chief Clerk of the Court of Claims [22 NYCRR §206.5(c)] - and, upon a failure to respond by the defendant, to proceed by motion to compel.
MOTION FOR RECUSAL
Claimant also asks that the Court - nicknamed "Judge Sccarrmunga" for the purpose - recuse itself, based upon claimant's perception that the Court is, among other things,
"callously and deliberately lying, and imposing his own personal brand of judicial terrorism and Italian style Facism/Communist ideologies that denies a New York State citizens (sic) disclosure and the questioning of State employees to protect said inscrutable officials." [Notice of Motion]
Elsewhere in claimant's submission, the name-calling continues, however a fair reading of Mr. Koehl's papers shows that the primary basis for claimant's request for this Court's recusal is that he disagrees with the earlier decision rendered. Indeed, the reargument motion suggests that claimant is familiar with the procedure for addressing rulings that one disagrees with, including, if necessary, an appeal.
More significantly, however, "[a]bsent a legal disqualification under Judiciary Law §14(1) , recusal is a matter solely within the discretion and personal conscience of the court . . . (citations omitted)." Matter of Zugibe v Bartlett, 63 AD3d 1165, 1165-1166 (2d Dept 2009). Claimant repeats his disagreement with the Court's prior motion decision throughout the present motion, and mischaracterizes the Court's suggestion therein that claimant might want to use more easily executed discovery vehicles such as interrogatories over depositions as an attempt to prevent his ability to depose State witnesses, and as a ruling that he is "precluded from all disclosure," [Affidavit in Support of Reargument & Recusal by Edward Koehl, Claimant, ¶6], which is simply not the case.
In any event, this Court has not violated either the Judiciary Law or the Codes of Judicial Conduct, [see 22 NYCRR 100.1 et seq.], and can truthfully say that it holds no bias whatsoever against this claimant, nor would a review of the record to date by a reasonable person show any bias or prejudice. Accordingly, the motion to have this Court recuse itself is denied.
Based on the foregoing, claimant's motion [M-77775] is in all respects denied.
March 25, 2010
White Plains, New York
THOMAS H. SCUCCIMARRA
Judge of the Court of Claims
1. Judiciary Law §14, entitled "Disqualification of judge by reason of interest or consanguinity" provides: "A judge shall not sit as such in, or take any part in the decision of, an action, claim, matter, motion or proceeding to which he is a party, or in which he has been attorney or counsel, or in which he is interested, or if he is related by consanguinity or affinity to any party to the controversy within the sixth degree. The degree shall be ascertained by ascending from the judge to the common ancestor, descending to the party, counting a degree for each person in both lines, including the judge and party, and excluding the common ancestor. But no judge of a court of record shall be disqualified in any action, claim, matter, motion or proceeding in which an insurance company is a party or is interested by reason of his being a policy holder therein. No judge shall be deemed disqualified from passing upon any litigation before him because of his ownership of shares of stock or other securities of a corporate litigant, provided that the parties, by their attorneys, in writing, or in open court upon the record, waive any claim as to disqualification of the judge."