Opinion
15-0884
04-20-2016
The People of the State of New York ex rel. Thomas A. Kearney, Relator, v. Greene County Sheriff Seeley, Respondent.
Appearances: Thomas A. Kearney Relator, pro se Greene County Jail 80 Bridge Street Catskill, New York 12414 Edward I. Kaplan, Esq. Counsel for Respondent Greene County Attorney's Office 411 Main Street, Suite 443 Catskill, New York 12414
Appearances: Thomas A. Kearney Relator, pro se Greene County Jail 80 Bridge Street Catskill, New York 12414 Edward I. Kaplan, Esq. Counsel for Respondent Greene County Attorney's Office 411 Main Street, Suite 443 Catskill, New York 12414 Lisa M. Fisher, J.
This matter returns to the Court on a motion to reargue by Relator, an inmate whom commenced this Article 70 habeas corpus action via Petition against Respondent Greene County Sheriff Seeley. On February 11, 2016, this Court issued a Decision and Order converting the matter to an article 78 proceeding, vacating all parole proceedings due to a conflict of interests with the Parole Hearing Officer, and ordered new proceedings not inconsistent with the Court's decision. The reason Relator was not released was because he was not entitled to immediate release. (See People ex rel. Branch v Barnes, 199 AD2d 726, 726 [3d Dept 1993]; Matter of Soto v New York State Bd. of Parole, 107 AD2d 693 [2d Dept 1985], affirmed 66 NY2d 817 [1985]; see also People ex rel. McCummings v De Angelo, 259 AD2d 794, 794—95 [3d Dept 1999]; People ex rel. Mack v Reid, 113 AD2d 962, 963 [2d Dept 1985].)
Now, Relator argues that the Court misapplied the holding in Soto, as Relator argues it appears the Court was "under the impression that [Relator] had been convicted of some crime other than the instant offense for which he is on parole." This assumption is wrong, as the underlying conviction—assault in the first degree and the accompanying sentence applied thereto (see People v Kearney, 24 AD3d 1105 [3d Dept 2005]—is the conviction the Court references which precludes Relator's immediate release.
Although Relator is correct that he has not been convicted of another offense, such is the case because the parole revocation hearing is still ongoing to make such determination. Or was still ongoing, as according to correspondence from Respondent, Relator plead guilty to a parole violation making this issue moot.
While substantively Relator's arguments fail, the Court also notes that procedurally Relator's motion to reargue must be denied. As was clearly explained to Relator in another matter (Kearney v McArdle, Decision and Order Dated May 21, 2015, Index No.: 14-1066), he must provide the submitted papers in the underlying matter for consideration in a motion to reargue. He has failed to do this which warrants outright denial. (See Loeb v Tanenbaum, 124 AD2d 941, 942 [3d Dept 1986] ["There is no authority compelling [the court] to consider papers which were not submitted in connection with the motion on which it is ruling; indeed, under CPLR 2214[c], the court may refuse to consider improperly submitted papers."] [citations omitted]; Sheedy v Pataki, 236 AD2d 92, 97—98 [3d Dept 1997] [finding no abuse of discretion where the supreme court denied the plaintiff's present motion which referenced but did not include exhibits from a previous motion "[b]ecause a Supreme Court Justice does not retain the papers following his or her disposition of a motion and should not be compelled to retrieve the clerk's file in connection with its consideration of subsequent motions . . . ."]; see also CPLR R. 2214 [c] ["Each party shall furnish to the court all papers served by that party. The moving party shall furnish all other papers not already in the possession of the court necessary to the consideration of the questions involved."].)
The only document from the prior application for habeas corpus in possession of the Court is its Decision and Order. The Court has reviewed such decision and finds no misapprehension or overlooking of law or fact.
The Court further notes that Relator's motion was improperly noticed providing a deficient time period to respond under CPLR R. 2214 (b), since it only provided 11 days, was served via regular mail, but sought answering papers within seven days. Thus, the motion can be procedurally denied for that reason alone. Given this abbreviated time, the CPLR does not afford Relator the option to reply unless he provides 21 days. (See CPLR R. 2214 [b]; CPLR R. 2103 [b].) Relator submitted a reply anyway, however such reply affidavit is unsworn and is incompetent evidence which cannot be considered. For the purposes of this Decision and Order, the Court still considered such reply but found it without merit.
To the extent not specifically addressed above, the parties' remaining contentions have been examined and found to be lacking in merit or rendered academic.
Thereby, it is hereby ORDERED that Relator's motion is DENIED, and all other relief requested therein is denied in its entirety, and the Petition remains DISMISSED.
This constitutes the Decision and Order of the Court. Please note that a copy of this Decision and Order along with the original motion papers are being filed by Chambers with the County Clerk. The original Decision and Order is being returned to the prevailing party, to comply with CPLR R. 2220. Counsel is not relieved from the applicable provisions of this Rule with regard to filing, entry and Notice of Entry.
IT IS SO ORDERED. DATED: April 20, 2016 E N T E R : Catskill, New York _______________________________ HON. Lisa M. Fisher SUPREME COURT JUSTICE Papers Considered: Relator's notice of motion for reargument CPLR § 2221, dated February 11, 2016, of Thomas A. Kearney; affidavit of Thomas A. Kearney, dated February 12, 2016; Respondent's opposition to motion for reargument, of Edward I. Kaplan, Esq., with annexed exhibits, dated February 25, 2016; and Reply to Respondent's opposition to motion for reargument, of Thomas A. Kearney, dated February 29, 2016.