Pro se Claimant's Motion for Reargument/Renewal denied.
|Claimant(s):||JUAN A. RODRIGUEZ|
|Claimant short name:||RODRIGUEZ|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||CHRISTOPHER J. McCARTHY|
|Claimant's attorney:||Juan A. Rodriguez, Pro Se|
|Defendant's attorney:||LETITIA JAMES
Attorney General of the State of New York
By: Michael T. Krenrich, Esq., AAG
|Third-party defendant's attorney:|
|Signature date:||September 7, 2021|
|See also (multicaptioned case)|
For the reasons set forth below, Claimant's Motion for "reconsideration," which the Court considers to be a motion for reargument and renewal of this Court's prior Decision and Order denying Claimant's Motion for summary judgment and granting Defendant's Cross-Motion for summary judgment dismissing the Claim, pursuant to CPLR 2221(a), (d), (e), and (f) (Rodriguez v State of New York, UID No. 2021-040-017 [Ct Cl, McCarthy, J., May 18, 2021]), is denied(1) .
This Claim, which was filed in the Office of the Clerk of the Court on March 25, 2019, alleges that, in April 1994, Claimant was found guilty on two separate charges (statutory rape and attempted criminal possession of a weapon) and sentenced to a concurrent term of two to four years in prison (Claim, ¶ 5). It is further asserted that, upon the expiration of the maximum sentence, Claimant was unconstitutionally directed by the Department of Corrections and Community Supervision (hereinafter, "DOCCS") to register as a level 3 sex offender without due process (id., ¶ 6). It appears that Claimant was arrested and incarcerated, he asserts illegally, for not registering as a sex offender (id.). The Claim further asserts that, during his "unlawful incarceration," he was assaulted by another inmate, allegedly because a correction officer was not at his/her assigned post (id.). Claimant asserts violations of his Federal constitutional rights and his State constitutional rights (id., ¶¶ 2, 8).
In deciding the Motion and Cross-Motion for summary judgment, the Court found that Claimant's submission failed to establish entitlement to judgment as a matter of law. The Court stated that Claimant submitted a verified statement wherein he cited to several cases and made arguments that the Court found did not address the merits of his Claim. The Court further found that Claimant failed to submit any competent evidence tending to establish the essential elements of the Claim. As such, his submission was insufficient (see Alvarez v Prospect Hosp., supra) and his Motion for summary judgment was denied. The Court then turned to Defendant's Cross-Motion for summary judgment and addressed each cause of action and explained in detail why each cause of action was being dismissed.
A motion for reargument, addressed to the discretion of the Court, is designed to afford a party an opportunity to establish that the Court overlooked or misapprehended the relevant facts or misapplied the controlling principle of law (Matter of Anthony J. Carter, DDS, P.C. v Carter, 81 AD3d 819, 820 [2d Dept 2011]; Adderley v State of New York, 35 AD3d 1043, 1043 [3d Dept 2006]). Its purpose is not to serve as a vehicle to permit an unsuccessful party to argue once again the very questions previously decided (Fosdick v Town of Hempstead, 126 NY 651, 652 ; Matter of Anthony J. Carter, DDS, P.C. v Carter, supra at 820). If such a motion contains new proof, it is a "renewal" motion, rather than a "reargument" motion, and should be treated as such (Connors, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C2221:7 at 282; CPLR C2221:9 at 287). An application for leave to renew must be based upon newly discovered material facts that existed at the time the prior motion was made but which were not then known to the party seeking leave to renew, as well as a justifiable excuse for failing to present such facts to the Court in connection with the initial motion (Trump on the Ocean, LLC v State of New York, 79 AD3d 1325, 1326-1327 [3d Dept 2010]; Tibbits v Verizon N.Y., Inc., 40 AD3d 1300, 1302-1303 [3d Dept 2007]).
Upon a review of Claimant's Motion papers and the Court's Decision upon the original motion, and upon due deliberation, the Motion for reargument is denied as Claimant has failed to establish that the Court overlooked or misapprehended the relevant facts or misapplied the controlling principle of law (Adderley v State of New York, supra; Matter of Anthony J. Carter, DDS, P.C. v Carter, supra). The Motion for renewal is denied as Claimant has not come forward with any new facts which existed at the time the prior motion was made but which were not then known to him, or a justifiable excuse for not having presented them to the Court at the time the original motion was made (Trump on the Ocean, LLC v State of New York, supra; Tibbits v Verizon N.Y., Inc., supra).
In his Reply Affidavit, Claimant requests poor person status seeking assignment of counsel to represent him when he appeals this matter.
Pursuant to CPLR § 1101(c), if an action has been commenced, notice of a poor person motion shall be served on all parties and shall also be given to the county attorney in the county in which the action is triable. Notice to the county attorney is a significant requirement because certain costs may be a county charge (see CPLR 1102; Hines v State of New York, UID No. 2005-028-534 [Ct Cl, Sise, P.J., June 21, 2005]; Jabbar v State of New York, UID No. 2006-044-504 [Ct Cl, Schaewe, J., Oct. 20, 2006]). The action is triable in the county where the claim accrued, in this case, Albany County, since that is where the Claim is venued. Claimant has failed to establish that he served a copy of this Motion upon the Albany County Attorney. Thus, pursuant to CPLR § 1101(c), his Motion is defective and must be denied on those grounds (Sebastiano v State of New York, 92 AD2d 966 [3d Dept 1983]; Harris v State of New York, 100 Misc 2d 1015, 1016 [Ct Cl 1979]).
It appears, from a reading of CPLR Article 11, that the only relief this Court can grant Claimant, were his case to be appealed, is to supply him with a stenographic transcript of his trial (see CPLR 1102[b]). However, there has not been a trial, as the Claim was dismissed by motion. If Claimant is of a mind again to move for poor person status, he should consider making his application to the Appellate Division, Third Department (pursuant to 22 NYCRR § 822.1 [Appellate Division, Third Department, Rules of Practice]).
Based upon the foregoing, Claimant's Motion is denied.
September 7, 2021
Albany, New York
CHRISTOPHER J. McCARTHY
Judge of the Court of Claims
The following papers were read and considered by the Court on the Motion for reargument and renewal:
Claimant's Motion for Reconsideration
& Exhibits Attached 1
Defendant's Affirmation 2
Claimant's Reply Affidavit 3
Filed Papers: Claim, Answer
1. Claimant asserts, in his Reply Affidavit, that his motion is not seeking reargument or renewal but, rather, is a Motion for Reconsideration based upon the definition of reconsideration found in "Black's Law." This Court's procedure is not governed by definitions contained in Black's Law Dictionary but by the laws and rules established by New York Law found in the Civil Practice Law and Rules ("CPLR"). Thus, a motion, such as Claimant's, that seeks to affect a prior order of a Court is governed by CPLR 2221 and is considered a motion for reargument and/or renewal.