|Claimant short name:||JOHNSON|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||JUDITH A. HARD|
|Claimant's attorney:||Johnathan Johnson, Pro Se|
|Defendant's attorney:||Hon. Andrew M. Cuomo, NYS Attorney General
By: Roberto Barbosa, Assistant Attorney General, Of Counsel
|Third-party defendant's attorney:|
|Signature date:||September 7, 2010|
|See also (multicaptioned case)|
Claimant's motion seeks a "rehearing" of this Court's Decision and Order, filed May 3, 2010, pursuant to CPLR 2221. As there is no such relief available, the Court is deeming claimant's motion as one seeking leave to renew and reargue, pursuant to CPLR 2221. Defendant opposes the motion on the basis that there are no new facts or a change in the law that would change the prior determination of the Court, and further, that claimant has not identified any matter of law or fact which was misapprehended by the Court in said determination. The Court agrees and denies claimant's motion.
The underlying claim alleges that while an inmate at Southport Correctional Facility, various prison officials improperly refused to issue him legal advances for the mailing of various legal documents. In its original Decision and Order, filed May 3, 2010, this Court determined that defendant's responses to claimant's discovery demands were appropriate and denied claimant's motion to compel. Specifically, this Court determined that it was reasonable for defendant to have stated that it would provide claimant with the requested documents, to the extent they exist, upon receipt of payment by claimant for 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.). Claimant has set forth no new facts or any change in the law that would have any bearing on the Court's prior determination. Accordingly, to the extent claimant's motion is one for renewal, it is denied.
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 (CPLR 2221 [d]; see Peak v Northway Travel Trailers, 260 AD2d 840 [3d Dept 1999]; Spa Realty Assoc. v Springs Assoc., 213 AD2d 781 [3d Dept 1995]; Loris v S & W Realty Corp., 16 AD3d 729, 730 [3d Dept 2005]). The Court finds that claimant has failed to show that it overlooked or misapprehended matters of fact or misapplied the law. In contrast to claimant's argument, the Court reiterates its finding in the prior determination that defendant is entitled to payment for photocopies of the discovery documents requested by claimant prior to remitting the same. Therefore, claimant's motion for reargument is denied.
To the extent claimant requests that defendant be ordered to produce certain documents for claimant to inspect and copy, it is being requested for the first time and therefore, is not the appropriate subject of this motion to renew and/or reargue.
Based upon the foregoing, claimant's motion for leave to renew and reargue (Motion No. M-78280) is denied in its entirety.
September 7, 2010
Albany, New York
JUDITH A. HARD
Judge of the Court of Claims
1. Notice of Motion for Rehearing and Affidavit in Support of Motion for Rehearing, sworn to by Johnathan Johnson, on May 11, 2010, with Exhibit.
2. Affirmation of Roberto Barbosa, AAG, in Opposition to Claimant's Motion for Rehearing, dated June 10, 2010.
Papers Filed: Claim, filed November 4, 2004; Order, filed November 17, 2004; Decision and Order, filed February 22, 2005; Verified Answer, filed November 23, 2005; and Decision and Order, filed May 3, 2010.