Claimant's motion for reargument denied. Claimant failed to demonstrate a matter of fact or law that the Court overlooked or misapprehended inasmuch as the Court ruled in its prior decision that the claim sounded in the intentional tort of wrongful confinement and not in negligence.
|Claimant short name:||DORSETTE|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||W. BROOKS DeBOW|
|Claimant's attorney:||ALFRED DORSETTE, Pro se|
|Defendant's attorney:||No Appearance|
|Third-party defendant's attorney:|
|Signature date:||January 20, 2021|
|See also (multicaptioned case)|
Claimant, an individual currently incarcerated in a State correctional facility, filed this motion seeking leave to reargue the Court's February 25, 2020 Decision and Order denying his motion for late claim relief, in which claimant alleged that he was wrongfully confined at Green Haven Correctional Facility (CF) in 2018 (see Dorsette v State of New York, UID No. 2020-038-520 [Ct Cl, DeBow, J., Feb. 25, 2020]). Defendant has not responded to the motion.
The CPLR provides that "[a] motion for leave to reargue . . . shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion, but shall not include any matters of fact not offered on the prior motion" (CPLR 2221 [d] ).(1) Here, claimant asserts that the Court "overlooked or misapprehended . . . that [his proposed late] claim sound[ed] in negligence as opposed to an intentional tort" (Motion for Leave to Reargue Pursuant to CPLR §2221 (d), ¶ 2), and argues that "[a]s the failure to start a hearing within seven days required a finding of dismissal without a valid extension, the facts alleged clearly construe the negligent oversight of the hearing officer in calculating the period of time that had passed since he received the misbehavior report" (id. at ¶ 5). Claimant argues that as a result, the "Court overlooked or misapprehended the facts related to its determination that [the proposed] claim sounded in an intentional tort, when it actually sounded in negligence" (id. at ¶ 6) and improperly applied the shorter one-year statute of limitations for an intentional tort rather than the three-year statute of limitations for negligence when it denied the late claim motion as untimely, and that upon reargument, the Court should grant his motion for late claim relief (see id. at ¶ 7). As noted above, defendant has not responded to the instant motion to reargue.
On this motion for leave to reargue, claimant has failed to identify any matter of fact or law that the Court allegedly overlooked or misapprehended in connection with the previous Decision and Order when it concluded that his proposed late claim sounded in the intentional tort of wrongful confinement rather than negligence and denied the motion for late claim relief as untimely. Claimant argues merely that the Court did not accept his theory of case - i.e. that his proposed claim sounded in negligence rather than intentional tort - which the Court addressed at length in the prior Decision and Order when it concluded that the proposed claim did not assert the type of conduct that constituted a cause of action for wrongful confinement sounding in negligence rather than intentional tort (see Dorsette, UID No. 2020-038-520, supra). As noted in the Court's prior Decision and Order, "a court that is evaluating a cause of action for purposes of determining the applicable limitations period is not bound by a party's characterization of the nature of the cause of action, but must examine and determine the true gravamen of the cause of action" (id., citing Western Elec. Co. v Brenner, 41 NY2d 291, 293 ; Gold v New York State Bus. Group, 255 AD2d 628, 630 n [3d Dept 1998]; Marine Midland Bank v Jerry Hamam, Inc., 96 AD2d 1137, 1138 [4th Dept 1983]). Inasmuch as the Court previously and clearly rejected claimant's argument that his proposed claim sounded in negligence because it did not "allege the type of conduct that typically sounds in negligence, such as the misapplication of the rules governing release or the miscalculation of a period of confinement" (Dorsette, UID No. 2020-038-520, supra), claimant has failed to satisfy his burden on this motion of demonstrating a matter of fact or law that the Court allegedly misapprehended or overlooked, and his motion must be denied.
Accordingly, it is
ORDERED, that claimant's motion number M-95909 is DENIED.
January 20, 2021
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims
1. Notice of Motion for Leave to Reargue Pursuant To CPLR § 2221(d), Motion No. M-94978, dated September 3, 2020;
2. Motion for Leave to Reargue Pursuant to CPLR § 2221(d), Motion No. M-94978, sworn to September 3, 2020;
3. Affidavit of Service of Alfred Dorsette, sworn to September 3, 2020.
1. The CPLR further provides that a motion for leave to reargue "shall be made within thirty days after service of a copy of the order determining the prior motion and written notice of its entry" (CPLR 2221 [d] ). Here, the Court's February 25, 2020 Decision and Order was filed and entered on May 11, 2020, and the instant motion was not filed until September 21, 2020. However, on March 20, 2020, Governor Cuomo issued Executive Order No. 202.8, which, among other things, directed that "any specific time limit for the commencement, filing, or service of any legal action, notice, motion, or other process or proceeding, as prescribed by the procedural laws of the state, including but not limited to [certain state laws], any other statute, local law, ordinance, order, rule, or regulation, or part thereof, is hereby tolled from the date of this executive order until April 19, 2020" (Executive Order No. 202.8, dated Mar. 20, 2020 [9 NYCRR 8.202.8] [emphasis added]). That directive was extended through successive Executive Orders, including Executive Order No. 202.67, which extended the directive a final time through "November 3, 2020, and after such date any such time limit will no longer be tolled" (Executive Order No. 202.67, dated Oct. 4, 2020 [9 NYCRR 8.202.67] [emphasis added]; see also Executive Order No. 202.72, dated Nov. 3, 2020 [9 NYCRR 8.202.72] ["the suspension for civil cases in Executive Order 202.8, as modified and extended in subsequent Executive Orders, that tolled any specific time limit for the commencement, filing, or service of any legal action, . . . as prescribed by the procedural laws of the state, including but not limited to . . . the court of claims act, . . . is hereby no longer in effect as of November 4, 2020]). Claimant's motion seeking leave to reargue thus was timely filed and served during the pendency of the Governor's Executive Orders.