Claimant's motion for reargument of prior summary judgment motion denied. Claimant failed to demonstrate any matter of fact or law overlooked or misapprehended by the Court in connection with the prior decision and order.
|Claimant short name:||COLEMAN|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||W. BROOKS DeBOW|
|Claimant's attorney:||TOWAUN COLEMAN, Pro se|
|Defendant's attorney:||LETITIA JAMES, Attorney General
of the State of New York
By: Heather R. Rubinstein, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||December 2, 2020|
|See also (multicaptioned case)|
Claimant, an individual currently incarcerated in a State correctional facility, filed this claim seeking compensation for injuries sustained when he was allegedly assaulted by a group of inmates on June 30, 2018. Claimant now moves for reconsideration of a prior Decision and Order of this Court that denied his motion for summary judgment (see Coleman v State of New York, UID No. 2020-038-537 [Ct Cl, DeBow, J., June 24, 2020]), and he seeks an order directing defendant to provide him with information regarding the number of assaults in the Green Haven Correctional Facility (CF) recreation yard between 2016 and 2018. Defendant takes no position on the motion on the ground that "[c]laimant does not seek remedies available through motion practice in the Court of Claims and/or fails to make any factual or legal foundation for the remedy sought" (Rubinstein Correspondence, dated November 10, 2020).
A motion for "reconsideration" of a prior order is not authorized by the CPLR, which provides that a party may seek permission to "renew" or to "reargue." The CPLR requires that a motion for leave to renew "shall 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] ), and it must also "contain reasonable justification for the failure to present such facts on the prior motion" (CPLR 2221 [e] ), while 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] ). In support of the instant motion, claimant offers no new facts that were not available to the Court in connection with his prior motion for summary judgment, nor does he argue that there has been a change in the law since the issuance of the Court's prior Decision and Order. Rather, he offers an unsworn document containing a series of "objections" to the Court's prior ruling on his summary judgment motion and argues that the State's refusal to provide him with certain items of discovery - as well as the Court's denial of his motion to compel the State to produce such discovery (see Coleman v State of New York, UID No. 2019-038-555 [Ct Cl, DeBow, J., June 20, 2019]) - prevented him from meeting his prima facie burden on that motion. Accordingly, the instant motion will be construed as one seeking leave to reargue the Court's June 24, 2020 Decision and Order denying claimant's motion for summary judgment on this claim.(1)
Claimant argues that the State improperly denied his discovery request for information regarding "the number amount of inmates that was assaulted, cut or stabbed while in Green Haven [CF's] recreational 'East Yard' between 2016-2018" (Objections, ¶ 3), and that he required that information in order to demonstrate the State's negligence with respect to the alleged assault that forms the basis of this claim (see id. at ¶ 4). Claimant argues that the information he sought regarding prior assaults in the Green Haven CF recreation yard - which defendant denied on the ground that the State did not possess such materials, that production of such materials would be unduly burdensome, and that the materials sought were irrelevant - was "relevant towards the matter at hand and . . . would have allowed claimant to present a prima facie [case]" (id. at ¶ 6). Claimant "object[s] to the denial of the requested discovery materials by the State, as well as the denial by the ruling Judge on Claimant's motion to compel discovery" (id. at ¶ 10 [A]), and he lodges a further "objection" to the Court's Decision and Order denying his motion for summary judgment on the ground that he failed to demonstrate that the alleged inmate-on-inmate attack was reasonably foreseeable (see id. at ¶¶ 7-8). Claimant argues that he would have been able to meet his prima facie burden on his summary judgment motion if he had been furnished with the discovery he requested regarding prior inmate-on-inmate assaults in the Green Haven CF recreation yard (see id. at ¶ 10 [A]). Claimant argues that the Court overlooked his showing "that Correction Officers had neglected the States [sic] Bare Minimum Standards concerning the supervision of inmates outside of their cells" when it held that claimant had failed to demonstrate that correction officers were required to be at their posts in the Green Haven CF recreation yard (id. at ¶ 10 [B]). Claimant requests that the Court "reconsider" its ruling on the prior summary judgment motion, and that he "be furnished with the number amount of stabbings, cuttings and slashings that occured [sic] from 2016-2018" in the Green Haven CF recreation yard (id. at ¶ 11). As noted above, defendant has taken no position on the instant motion.
As an initial matter, to the extent claimant argues that he was prevented from establishing a prima facie case on his prior summary judgment motion because of the State's refusal to furnish him with the information he sought regarding prior assaults in the Green Haven CF yard between 2016 and 2018, the Court denied claimant's previous motion to compel insofar as it sought an order directing defendant to disclose such information, holding that defendant was not obligated to create or compile information in order to comply with a discovery demand (see Coleman v State of New York, UID No. 2019-038-555, supra). To the extent that the instant motion attempts to reargue the Court's June 20, 2019 Decision and Order, it is clearly untimely (see CPLR 2221 [d] ). Insofar as claimant argues that he was prevented from establishing a prima facie case on his summary judgment motion because he lacked the information that he sought in his prior discovery motion, as the Court previously ruled, claimant was not entitled to that information, and thus claimant has failed to present any matter of fact or law that the Court allegedly overlooked with respect to its June 24, 2020 Decision and Order.
With respect to claimant's additional argument that the Court overlooked his showing on his prior summary judgment motion that defendant's employees at Green Haven CF violated certain "Bare Minimum Standards" with respect to the supervision of inmates, claimant does not identify what those "standards" are, and thus the Court cannot determine whether it overlooked such showing in connection with the prior motion. To the extent that claimant may be referring to the two regulations related to inmate supervision that he cited in connection with his motion for summary judgment (see 9 NYCRR §§ 7003.2, 7003.4), the Court did not overlook those regulations in its Decision and Order denying claimant's motion for summary judgment, but rather ruled that those regulations did not address the assignment of correction officers to the recreation yard and that claimant had failed to demonstrate that correction officers were absent from their assigned posts at the time of the alleged assault (see Coleman, UID No. 2020-038-537, supra). Claimant thus has failed to demonstrate any matter of fact or law that the Court overlooked in connection with his prior motion for summary judgment, and the instant motion for reargument will not be granted.
Accordingly, it is
ORDERED, that claimant's motion number M-95899 is DENIED.
December 2, 2020
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims
1. Claim No. 131889, filed August 23, 2018;
2. Verified Answer, filed September 24, 2018;
3. "Objections," dated August 30, 2020;
4. Correspondence of Heather R. Rubinstein, AAG, dated November 10, 2020;
5. Decision and Order, Coleman v State of New York, UID No. 2019-038-555 (Ct Cl, DeBow, J., June 20, 2019);
6. Decision and Order, Coleman v State of New York, UID No. 2020-038-537 (Ct Cl, DeBow, J., June 24, 2020).
1. The CPLR requires 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 prior Decision and Order denying claimant's motion for summary judgment was filed on July 10, 2020, and claimant did not file the instant motion until September 4, 2020. However, on March 20, 2020, in response to the Coronavirus pandemic, the Governor 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]). That directive was extended through successive Executive Orders, including Executive Order No. 202.67, which extended the directive for a final time through November 3, 2020, and stated that the toll would not be further extended (see Executive Order No. 202.67, dated Oct. 4, 2020 [9 NYCRR 8.202.67]; see also Executive Order No. 202.72, dated Nov. 3, 2020 [9 NYCRR 8.202.72] [toll on time limits for service of any motion prescribed by the CPLR no longer in effect as of November 4, 2020]). Accordingly, claimant's time to file and serve the instant motion, insofar as it can be construed as one seeking leave to reargue, was not subject to the 30-day time limitation set forth in the CPLR inasmuch as the Court's prior decision and order was issued and this motion was filed during the pendency of the tolling period imposed by Executive Order, and the motion will not be denied on timeliness grounds.