|Claimant short name:||LAMAGE|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||JUDITH A. HARD|
|Claimant's attorney:||Edwin Lamage, Pro Se|
|Defendant's attorney:||Hon. Andrew M. Cuomo, NYS Attorney General
By: Joseph F. Romani, Assistant Attorney General, Of Counsel
|Third-party defendant's attorney:|
|Signature date:||August 23, 2010|
|See also (multicaptioned case)|
Claimant, an inmate proceeding pro se, has brought this motion seeking leave to renew with respect to this Court's Decision and Order, filed April 17, 2009, denying his request for an order granting summary judgment. Defendant opposes the motion. For the reasons set forth below, the Court denies claimant's motion in its entirety.
The underlying claim alleges that between December 16, 2006 through March 26, 2007, defendant, through its agents, wrongfully confined claimant in keeplock at Southport Correctional Facility after a hearing in which he was found guilty of a sex offense and an unauthorized exchange. In its original decision, this Court determined that where a party seeks admission of matters beyond the "clear-cut matters of fact that he could reasonably believe were not subject to dispute," the opposing party's failure to respond to such a notice to admit cannot, without more, serve as the basis for summary judgment (quoting Howlan v Rosol, 139 AD2d 799, 801 [3d Dept 1988]). Claimant now argues that defendant's subsequent answers to claimant's interrogatories, which indicate that the subject of claimant's alleged sexual offense was housed in cell B-2-20 on the date of the subject occurrence, constitutes newly discovered evidence warranting renewal of his summary judgment motion.
In opposition to claimant's motion, defendant states that the fact that the subject of claimant's improper sexual solicitation was housed in cell B-2-20 on September 14, 2006 establishes nothing new or beneficial to claimant's cause of action, and further, that this fact was known back on September 28, 2006, which is when claimant was found guilty of the aforesaid violations. In support of its position, defendant annexes a copy of claimant's Inmate Behavior Report, dated September 14, 2006, which confirms the same.
A motion for leave to renew must be based upon new facts not offered on the prior motion that would change the prior determination or shall demonstrate that there has been a change in the law that would change the prior determination (CPLR 2221 [e]; Tibbits v Verizon N.Y., Inc., 40 AD3d 1300, 1302-1303 [3d Dept 2007]). It shall contain reasonable justification for the failure to present such facts on the prior motion (Id.).
In the present case, claimant has set forth no new facts or any change in the law that would have any bearing on the Court's prior determination. Claimant's motion for renewal is therefore denied.
August 23, 2010
Albany, New York
JUDITH A. HARD
Judge of the Court of Claims
1. Notice of Motion, dated April 16, 2010, and Affidavit in Support of Motion to Renew, sworn to by claimant on April 16, 2010, with Exhibit;
2. Affirmation of Joseph F. Romani, AAG, in Opposition to Motion to Reargue, dated April 30, 2010, with Exhibit.
Papers Filed: Verified Claim, filed on June 20, 2007; Verified Answer, filed July 20, 2007; Order of Hon. Richard E. Sise, Presiding Judge, filed July 9, 2007; Decision and Order of Hon. Gina M. Lopez-Summa, filed March 25, 2008; Decision and Order of Hon. Judith A. Hard, J.C.C., filed April 17, 2009.