|Claimant short name:||FLEMING|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||RICHARD E. SISE|
|Claimant's attorney:||ROBERT FLEMING, PRO SE|
|Defendant's attorney:||NO APPEARANCE|
|Third-party defendant's attorney:|
|Signature date:||November 23, 2021|
|See also (multicaptioned case)|
The following papers were read on Claimant's motion to reargue/renew a prior decision and order
1. Verified statement of Robert Fleming sworn to September 9, 2021 with exhibits annexed.
Filed papers: Decision and Order M-96327 (Hard, J.)
Claimant has captioned this motion as one for relief from a final judgment or order and has requested summary judgment on the issue of liability. The papers submitted in support of the motion do not reference a particular claim but do make mention of a prior motion. That prior motion was made pursuant to Court of Claims Act § 10 (6) for permission to late file a claim. The motion was denied because claimant failed to establish an appearance of merit to the proposed claim (Fleming v State of New York, Ct Cl, July 2, 2021, Hard, J., M-96327).
Given the posture of the claim, the only relief available to claimant in this court is a motion for leave to reargue the prior decision or renewal of the prior motion. 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'" (Loris v S & W Realty Corp., 16 AD3d 729, 730 [3d Dept 2005] quoting, Peak v Northway Travel Trailers Inc., 260 AD2d 840, 842 [3d Dept 1999]). A motion to renew is based upon newly discovered material facts or evidence which existed at the time the prior motion was made, but were unknown to the party seeking renewal, together with a valid excuse as to why the new information was not previously submitted (CPLR 2221 [e]; Carota v Wu, 284 AD2d 614, 617 [3d Dept 2001]).
The prior decision, as noted, addressed a motion for permission to late file a claim where the cause of action raised in the proposed claim was one for unjust conviction and imprisonment under Court of Claims Act § 8-b. The motion was denied because claimant "failed to plea any facts establishing that he was pardoned on the ground of innocence or, alternatively, his conviction was reversed or vacated and the accusatory instrument dismissed, as required by Court of Claims Act § 8-b (3)." (Fleming at p.3). The court further noted that the movant was still incarcerated for the crimes for which he claimed innocence (Fleming at p.3-4).
Claimant now argues that he did satisfy the pleading requirement because papers submitted "[satisfy] the factual showing that the (sic) if a new trial was ordered, the judgment of conviction would be reversed and vacated...". Claimant, however, has misread the statute.
Court of Claims Act § 8-b (3) provides that "in order to present the claim..., claimant must establish by documentary evidence that... [they] have been pardoned upon the ground of innocence...; or ...[their] judgment of conviction was reversed or vacated...;... or if a new trial was ordered, either [they were] found not guilty at the new trial or [they were] not retried... ." (emphasis supplied). The statute employs language of the past tense clearly indicating that the pardon, reversal or vacature, or order for a new trial, must have occurred before such a claim can be presented. Claimant's burden with respect to this element of the cause of action is to show that the conviction has been removed not, as claimant would have it, that it should be removed. As such, claimant has failed to show that reargument should be granted on the basis that the court overlooked or misapprehended the facts and/or the law or mistakenly arrived at its earlier decision. Moreover, claimant has not offered any newly discovered material facts or evidence to support a motion to renew.
Accordingly, it is
ORDERED, that the motion is denied.
November 23, 2021
Albany, New York
RICHARD E. SISE
Judge of the Court of Claims