Claimant's motion for reargument and/or renewal of his prior motion, which resulted in decision and order which granted in part and denied in part claimant's motion to dismiss certain of defendant's defenses, is denied; defendant's cross-motion to dismiss claimant's assault and battery cause of action as untimely is granted.
|Claimant short name:||AYALA-GONZALEZ|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||FRANK P. MILANO|
|Claimant's attorney:||ABIMAEL AYALA-GONZALEZ
|Defendant's attorney:||HON. LETITIA JAMES
New York State Attorney General
By: Michael T. Krenrich, Esq.
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||October 8, 2020|
|See also (multicaptioned case)|
Claimant moves for reargument and renewal of his motion (M-94933) which resulted in the Court's Decision and Order, filed May 11, 2020, which granted in part and denied in part claimant's motion to dismiss certain defenses set forth in defendant's answer.
The defendant opposes the claimant's motion for reargument and/or renewal and cross-moves (CM-95727) to dismiss claimant's assault and battery cause of action because neither the notice of intention to file a claim nor the claim were served within ninety days of accrual of the assault and battery cause of action on November 9, 2018.
Claimant's motion to reargue and/or renew is denied.
A motion to reargue is "made on the papers submitted on the original motion" (Phillips v Village of Oriskany, 57 AD2d 110, 113 [4th Dept 1977]). Claimant has not provided a copy of "the papers submitted on the original motion" in his motion for reargument.
In particular, claimant has not provided a copy of defendant's affirmation in opposition to claimant's prior motion and has not provided a copy of claimant's reply to defendant's affirmation in opposition.
Additionally, in determining a motion, the court may only consider documents and exhibits which have been served upon all parties (CPLR 2214 [c]). Unless the Attorney General has been served with a set of motion papers different than those filed with the Clerk of the Court of Claims, claimant has failed to serve a complete copy of the papers submitted on the original motion on the Attorney General. Therefore, the papers submitted on the original motion cannot be considered even if the Court were to attempt to retrieve those papers from the Clerk of the Court of Claims, which it has no obligation to do (Sheedy v Pataki, 236 AD2d 92, 97-98 [3d Dept 1997], lv denied 91 NY2d 805 ).
Beyond these fatal procedural infirmities, "[i]t is well settled that a motion for leave to reargue pursuant to CPLR 2221 is addressed to the sound discretion of the court and is properly granted upon a showing that the court overlooked or misapprehended the facts and/or the law or mistakenly arrived at its earlier decision" (Peak v Northway Travel Trailers Inc., 260 AD2d 840, 842 [3d Dept 1999]).
Claimant has not shown that the Court "overlooked or misapprehended" the relevant facts or law in its prior decision and order (see CPLR 2221 [d] ).
In his prior motion, claimant requested that defendant's defenses, asserting that neither the notice of intention to file a claim nor the claim were served within ninety days of the accrual of the claim, be dismissed in their entirety. Further, in his prior motion, claimant made no distinction, in seeking dismissal of the defendant's timeliness defenses, between a timeliness defense to his assault and battery cause of action, which indisputably accrued on November 9, 2018, and a timeliness defense to his wrongful confinement cause of action.
Rather, claimant argued exclusively that his wrongful confinement cause of action did not accrue until his administrative disciplinary determination was reversed by defendant (January 31, 2019) or when he "received the administrative reversal" (February 5, 2019).
The Court correctly reminded claimant that his wrongful confinement cause of action accrued upon his release from confinement, a date never specifically set forth in claimant's prior motion or in the claim. Significantly, the claimant's notice of intention to file a claim specifically states that the "time when . . . such claim arose [was] November 9, 2018."
The omission in the claim and prior motion papers of the specific date on which claimant was released from confinement is especially significant because claimant was abundantly aware of, and argued in opposition to, the controlling appellate cases holding that an inmate cause of action for wrongful confinement accrues on the specific date that the inmate is released from confinement.
The Court properly denied claimant's request for dismissal of the defendant's timeliness defenses, in their entirety, because the allegations of the claim showed that claimant's assault and battery cause of action accrued on November 9, 2018 and that claimant's notice of intention to file a claim was served more than ninety days after November 9, 2018 and was arguably untimely (see Court of Claims Act 10 [3-b]).
Next, a motion to renew "shall be based upon new facts not offered on the prior motion that would change the prior determination . . . [and] shall contain reasonable justification for the failure to present such facts on the prior motion" (CPLR 2221 [e]  and ). Further, "[r]enewal is not a means by which to remedy the failure to present evidence which, with due diligence, could have been produced at the time of the original motion" (Kahn v Levy, 52 AD3d 928, 930 [3d Dept 2008]).
While claimant now argues that he was released from confinement sometime between January 31 and February 5, 2019, he has provided no "reasonable justification for the failure to present such facts on the prior motion" (CPLR 2221 [e] ).
For all of the foregoing reasons, the claimant's motion for reargument and/or renewal is denied.
Defendant's cross-motion to dismiss claimant's assault and battery cause of action is granted. There is no dispute that the alleged assault and battery occurred on November 9, 2018 and that the notice of intention to file a claim was not served on defendant until April 25, 2019, more than ninety days after accrual of the assault and battery cause of action.
Court of Claims Act 10 (3-b) provides that:
"A claim to recover damages for . . . personal injuries caused by the intentional tort of an officer or employee of the state while acting as such officer or employee . . . shall be filed and served upon the attorney general within ninety days after the accrual of such claim, unless the claimant shall within such time serve upon the attorney general a written notice of intention to file a claim therefor, in which event the claim shall be filed and served upon the attorney general within one year after the accrual of such claim."
Courts have consistently held that "[a]s a condition of the State's limited waiver of sovereign immunity, those requirements [timely filing and service] are strictly construed and a failure to comply therewith is a jurisdictional defect compelling the dismissal of the claim" (Welch v State of New York, 286 AD2d 496, 497-498 [2d Dept 2001]; see Robinson v State of New York, 38 AD3d 1030 [3d Dept 2007]; Pizarro v State of New York, 19 AD3d 891, 892 [3d Dept 2005], lv denied 5 NY3d 717 ).
The claimant's motion for reargument and/or renewal is denied and the defendant's motion to dismiss the claimant's assault and battery cause of action is granted.
October 8, 2020
Albany, New York
FRANK P. MILANO
Judge of the Court of Claims
1. Claimant's Notice of Motion, filed June 10, 2020;
2. Affidavit of Abimael Ayala-Gonzalez, sworn to June 3, 2020, and annexed exhibits;
3. Defendant's Notice of Cross-Motion to Dismiss, filed July 23, 2020;
4. Affirmation in Opposition to Claimant's Motion and in Support of Defendant's Cross-Motion of Michael T. Krenrich, dated July 21, 2020, and annexed exhibits.