Opinion
# 2012-048-075 Claim No. 114435 Motion No. M-82179
11-30-2012
RALPH LEE v. THE STATE OF NEW YORK
Synopsis
The Court denied Claimant's motion seeking leave to renew a prior Decision denying Claimant's motion seeking leave to renew and reargue. Case information
UID: 2012-048-075 Claimant(s): RALPH LEE Claimant short name: LEE Footnote (claimant name) : Defendant(s): THE STATE OF NEW YORK Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): 114435 Motion number(s): M-82179 Cross-motion number(s): Judge: GLEN T. BRUENING Claimant's attorney: RALPH LEE, Pro Se HON. ERIC T. SCHNEIDERMAN Attorney General of the State of New York Defendant's attorney: By: Joan Matalavage, Esq. Assistant Attorney General Third-party defendant's attorney: Signature date: November 30, 2012 City: Albany Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
Claimant Ralph Lee commenced this action seeking damages for personal injuries he sustained to his third finger on his left hand on June 4, 2007 while an inmate at the Eastern Correctional Facility in Napanoch, Ulster County, under the supervision of the Department of Correctional Services ("DOCS").
DOCS is now known as the Department of Corrections and Community Supervision (DOCCS). Inasmuch as the Claim relates to acts that occurred prior to the name change, this Decision will refer to the Executive Agency by its former name.
By Decision and Order dated December 7, 2011, this Court granted Defendant's Motion to Dismiss the Claim based on Claimant's failure to comply with the service requirements of Court of Claims Act § 11 (a) (i) (see Lee v State of New York, UID No. 2011-048-023 [Ct Cl, Bruening, J., Dec. 7, 2011]). Specifically, the Court found, among other things, that Claimant served the Claim on the Attorney General via first-class mail, thus depriving the Court of subject matter jurisdiction over the Claim. By Decision and Order dated June 25, 2012, this Court denied Claimant's Motion requesting that the Court reconsider its prior Decision and Order (see Lee v State of New York, UID No. 2012-048-047 [Ct Cl, Bruening, J., June 25, 2012]). Specifically, the Court found that Claimant failed to present any newly-discovered facts in support of his motion that would have changed the prior determination and/or any justification for not originally offering those facts, and also failed to show that the Court overlooked or misapprehended matters of fact or law in determining the prior motion. Defendant now moves, pursuant to CPLR 2221 (e), seeking leave to renew his prior motion seeking reconsideration of the Court's December 2011 Decision and Order. Defendant opposes the Motion.
In support of his Motion, Claimant asserts that the Court failed to consider the lack of prejudice to the State in its Decision and Order of June 2012, based on facts revealed in conjunction with the Court's Decision and Order of December 2011.Specifically, Claimant contends that the Assistant Attorney General assigned to this matter acknowledged receipt of the Notice of Intention to File a Claim (see Lee v State of New York, UID No. 2011-048-023, page 4) and, thus, engaged in unethical behavior by making false statements.Claimant argues that Defendant had notice of the substance of the Claim and did not suffer prejudice by the manner in which the Claim was served. Claimant further asserts that he was unable to cover the costs of service of the Claim in conformance with the Court of Claims Act and was denied access to an advance to cover those costs.
Claimant refers to the Court's Decision of February 3, 2012, which is the filing date of the Court's December 2011 Decision and Order. Claimant also refers to a Decision of August 9, 2012. The Court assumes that Claimant intends to refer to the Court's Decision and Order dated June 25, 2012, which was filed on August 6, 2012.
Claimant asserts violations of former Disciplinary Rules 1-102 (a), (2), (3), (4) and (6), now known as the Rules of Professional Conduct, rule 8.4 (see Code of Professional Responsibility, Misc Table, Book 29, App.; 22 NYCRR 1200.00). Claimant alleges that Counsel failed to disclose what she was obligated to disclose and knowingly made false statements. In referencing page 4 of the Court's December 2011 Decision and Order, it appears that Claimant contends that Counsel lied about having not received certain "Motions" in July 2007 (see Notice of ReEntry Renew and Review Motion Reconsideration, CPLR 2221E Actual injury and Abuse of Authority, pages 1-4). However, page 4 of the Court's Decision and Order in Lee v State of New York (UID No. 2011-048-023) makes clear that, in conjunction with Defendant's motion to dismiss based on Claimant's failure to comply with the service requirements of Court of Claims Act § 11 (a) (i), Counsel acknowledged that service of a Notice of Intention was completed on July 13, 2007.
DOCS regulations provide for advances for "special handling" (e.g., certified mail, return receipt) of legal mail if required by a statute, court rule or court order (see 7 NYCRR 721.3 [a] [2][iv][c][v-vii]).
In opposition to Claimant's motion, Defendant's counsel denies any attempt to mislead the Court and contends that the issue is not whether the Attorney General had notice of the Claim, but whether Claimant served the Claim in compliance with the Court of Claims Act. In this regard, Defendant notes that Claimant has admitted serving the Claim in this matter on the Attorney General via regular mail.
A motion to renew must be based upon " 'new facts not offered on the prior motion that would change the prior determination . . . and . . . reasonable justification for the failure to present such facts on the prior motion' " (Webber v Scarano-Osika, 94 AD3d 1304, 1305 [3d Dept 2012], quoting CPLR 2221 [e] [2], [3]). "Renewal is by no means guaranteed and is not a second chance freely given to parties who have not exercised due diligence in making their first factual presentation" (Matter of Barns v State of New York, 159 AD2d 753, 754 [3d Dept 1990], lv dismissed 76 NY2d 935 [1990] [internal quotation marks and citations omitted]). Here, Claimant has not presented any newly discovered facts in support of his motion that would have changed the prior determination. Whether Defendant's counsel received the Notice of Intention in July 2007, while not relevant to whether the Claim was served in compliance with Court of Claims Act, was addressed by this Court as part of Defendant's prior motion seeking dismissal of the Claim (see Lee v State of New York, UID No. 2011-048-023). Likewise, that he was unable to afford the costs associated with service of the Claim via certified mail, return receipt requested, was addressed by this Court as part of Claimant's prior motion seeking reconsideration (see Lee v State of New York, UID No. 2012-048-047). To the extent that Claimant now contends that he was denied access to an advance to cover the costs associated with service of the Claim by certified mail, return receipt requested, that was a fact that would have been known to Claimant as early as October 29, 2007 - the date he alleges he served the Claim on the Attorney General (see Lee v State of New York, UID No. 2011-048-023). In this regard, Claimant has failed to demonstrate a reasonable justification for not previously submitting that allegation (see Webber v Scarano-Osika, 94 AD3d at 1306). To the extent that Claimant's motion can be read as seeking leave to reargue, no showing is made that the Court overlooked or misapprehended matters of fact or law in determining the prior motion (see Adderley v State of New York, 35 AD3d 1043, 1043 [3d Dept 2006]).
Accordingly, Claimant's Motion No. M-82179 is denied.
The following papers were read and considered by the Court:
Lee v State of New York, UID No. 2011-048-023 [Ct Cl, Bruening, J., December 7, 2011];
Lee v State of New York, UID No. 2012-048-047 [Ct Cl, Bruening, J., June 25, 2012];
Claimant's "Notice of ReEntry Renew and Review Motion Reconsideration, CPLR 2221E Actual Injury and Abuse of Authority," filed September 6, 2012;
Claimant's "ReEntry - Add-on Upon Motion 80068 M-80458 CPLR 22211E Actual Injury
Abuse of Authority Reconsideration," filed September 7, 2012;
Affidavit of Joan Matalavage, Esq., sworn to on September 28, 2012.
November 30, 2012
Albany, New York
GLEN T. BRUENING
Judge of the Court of Claims