Claimant's motion to vacate the Court's prior Decision and Order in this matter.
|Claimant short name:||JACKSON|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||GINA M. LOPEZ-SUMMA|
|Claimant's attorney:||Erwin Jackson, Pro Se|
|Defendant's attorney:||Hon. Barbara D. Underwood, Attorney General
By: Douglas H. Squire, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||March 29, 2019|
|See also (multicaptioned case)|
The following papers were read and considered by the Court on this motion: Claimant's Notice of Motion, Claimant's Affirmation in Support with annexed Exhibit and Defendant's Affirmation in Opposition.
Claimant Erwin Jackson, has brought this motion pursuant to CPLR 5015 seeking an order vacating this Court's prior Decision and Order filed November 27, 2018 which dismissed the claim in this matter and for an order pursuant to CPLR 2221 granting reargument and/or reconsideration of the above Decision and Order. Defendant, the State of New York, opposes the motion.
Claimant states in his notice of motion that he is proceeding under CPLR 5015 due to the court's lack of jurisdiction over defendant's motion to dismiss which corresponds to CPLR 5015 (a) (4).
CPLR 5015 (a) (4) provides, in relevant part, that "[t]he court which rendered a judgment or order may relieve a party from it upon such terms as may be just, on motion of any interested person . . . , upon the ground of . . . lack of jurisdiction to render the judgment or order."
A motion for reargument pursuant to CPLR 2221, 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 the controlling principle of law. In addition, a motion to reargue must be made within 30 days after service of a copy of the order determining the prior motion and written notice of entry (CPLR 2221 [d]). It does not serve to provide a party an opportunity to reargue the same issues previously decided nor does it serve to provide a party the opportunity to advance arguments different from those presented in the original motion (Foley v Roche, 68 AD2d 558, 567 [1st Dept 1979]).
Claimant argues that the Court misapplied the law in considering and granting defendant's motion to dismiss the claim. Claimant contends that the Court lacked jurisdiction because defendant's motion was untimely, to wit, it was filed 14 months subsequent to the submission of the Verified Answer and not within 40 days of service of the responsive pleadings in contravention of CPLR 3211(e) and Court of Claims Rule 206.7 which set forth a 40 day time period. Additionally, claimant argues that the Court made erroneous factual determinations with respect to his claims for wrongful confinement and false imprisonment when it determined that claimant's confinement had not yet been terminated.
CLR 3211 (e) sets forth that:
Number, time and waiver of objections; motion to plead over. At any time before service of the responsive pleading is required, a party may move on one or more of the grounds set forth in subdivision (a), and no more than one such motion shall be permitted. Any objection or defense based upon a ground set forth in paragraphs one, three, four, five and six of subdivision (a) is waived unless raised either by such motion or in the responsive pleading. A motion based upon a ground specified in paragraph two, seven or ten of subdivision (a) may be made at any subsequent time or in a later pleading, if one is permitted; an objection that the summons and complaint, summons with notice, or notice of petition and petition was not properly served is waived if, having raised such an objection in a pleading, the objecting party does not move for judgment on that ground within sixty days after serving the pleading, unless the court extends the time upon the ground of undue hardship. The foregoing sentence shall not apply in any proceeding under subdivision one or two of section seven hundred eleven of the real property actions and proceedings law. The papers in opposition to a motion based on improper service shall contain a copy of the proof of service, whether or not previously filed. An objection based upon a ground specified in paragraph eight or nine of subdivision (a) is waived if a party moves on any of the grounds set forth in subdivision (a) without raising such objection or if, having made no objection under subdivision (a), he or she does not raise such objection in the responsive pleading (emphasis added).
A motion to dismiss for failure to state a cause of action is the ground specified in paragraph seven of subdivision (a) and such motion may be made at any subsequent time. Consequently, defendant's motion to dismiss for failure to state a cause of action was timely. Claimant has failed to establish that the Court lacked jurisdiction over defendant's motion. Additionally, claimant has not established how or that the Court overlooked or misapprehended any facts or principles of law with respect to the wrongful confinement/false imprisonment cause of action. A plain reading of the claim establishes that claimant's confinement had not yet terminated.
Lastly, the Court notes that the Appellate Division held in People v Jackson, 152 AD3d 796 [2d Dept 2017], that "the resettlement of [claimant's] order of commitment did not alter or affect in any way the sentence originally imposed" upon claimant in this matter.
Therefore, for the foregoing reasons, claimant's motion is denied.
March 29, 2019
Hauppauge, New York
GINA M. LOPEZ-SUMMA
Judge of the Court of Claims