Claimant's motion for reargument and renewal of his prior motion for summary judgment is denied.
|Claimant short name:||GREEN|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||FRANK P. MILANO|
|Claimant's attorney:||SHAWN GREEN
|Defendant's attorney:||HON. LETITIA JAMES
New York State Attorney General
By: Shadi Masri, Esq.
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||December 7, 2020|
|See also (multicaptioned case)|
Claimant moves for reargument and renewal of his prior motion (M-95478) which resulted in the Court's Decision and Order, filed September 9, 2020, which denied claimant's motion for summary judgment on his amended claim which requests damages for wrongful confinement, assault and battery, negligence, conversion and prima facie tort.
Defendant opposes the claimant's motion.
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 "the papers submitted on the original motion" in his motion for reargument and renewal.
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] ).
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]).
The only allegedly new fact offered by claimant is a copy of the "SUPERINTENDENT'S HEARING/EXPUNCTION ORDER" (Superintendent's Order) regarding the November 14, 2018 disciplinary hearing underlying claimant's purportedly wrongful confinement. Claimant has provided no "reasonable justification for the failure to present such facts on the prior motion" (CPLR 2221 [e] ).
Further, the allegedly new fact offered by claimant would not change the prior decision and order. The Superintendent's Order reversing the claimant's disciplinary determination shows that the determination was reversed based upon a lack of substantial evidence rather than a violation of any applicable rule or regulation in conducting the November 14, 2018 disciplinary hearing. In such circumstances, the defendant retains its quasi-judicial absolute immunity from liability (Arteaga v State of New York, 72 NY2d 212, 214-215 ; Varela v State of New York, 283 AD2d 841 [3d Dept 2001]).
For all of the foregoing reasons, the claimant's motion for reargument and/or renewal is denied.
December 7, 2020
Albany, New York
FRANK P. MILANO
Judge of the Court of Claims
1. Claimant's Notice of Motion, filed October 9, 2020;
2. Affidavit of Shawn Green, sworn to October 5, 2020, and attached exhibit;
3. Affirmation in Opposition of Shadi Masri, dated November 19, 2020.