Claimant's motion for summary judgment was denied as moot as the defendant's motion to dismiss the claim was previously granted and the claim was dismissed.
|Claimant short name:||FLEMING|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||FRANCIS T. COLLINS|
|Claimant's attorney:||Robert Fleming, Pro Se|
|Defendant's attorney:||Honorable Letitia James, Attorney General
By: Douglas R. Kemp, Esq., Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||May 6, 2020|
|See also (multicaptioned case)|
Claimant, a pro se inmate, moves for summary judgment on a cause of action which he states arises from the medical malpractice and/or negligence of the Department of Corrections and Community Supervision in failing to replace his lost hearing aides. Defendant opposes the motion on the ground it constitutes an untimely and meritless motion to reargue which must be denied.
By Decision and Order filed June 24, 2019 and served with notice of entry on July 9, 2019, the defendant's motion to dismiss the claim pursuant to CPLR 3211 (a) was granted and the claim was dismissed on the ground it failed to state a cause of action (see Fleming v State of New York, Ct Cl, May 3, 2019, Collins, J., claim no. 131004, UID No. 2019-015-140). The claim alleged damages arising from an improper and unconstitutional cell search as well as damage to unspecified property. To the extent claimant now seeks summary judgment on a dismissed claim, the motion is moot and must be denied on that basis alone. To the extent he intended the instant motion as one to reargue under CPLR 2221, the motion was not made within 30 days after service of a copy of the Order determining the prior dismissal motion, and was not based upon matters of fact or law allegedly overlooked or misapprehended by the Court (CPLR 2221 [d]  ). Nor may the motion be considered one for leave to renew as it is not based on new facts not offered on the prior motion or a change in law that would change the prior outcome (CPLR 2221 [e]).
Accordingly, claimant's motion is denied.
May 6, 2020
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims
1. Notice of motion dated January 17, 2020;
2. Unsworn verification dated January 22, 2020, with attachments;
3. Affirmation in Opposition dated February 18, 2020 with Exhibit A.