Opinion
# 2018-038-573 Claim No. 128330 Motion No. M-92289
08-01-2018
THEODORE SIMPSON v. THE STATE OF NEW YORK
THEODORE SIMPSON, Pro se BARBARA D. UNDERWOOD, Attorney General of the State of New York By: Jeane L. Strickland Smith, Assistant Attorney General
Synopsis
Claimant's motion for "reconsideration" denied. Claimant is not seeking relief in the nature of reargument or renewal pursuant to CPLR 2221, but is requesting an opportunity to re-do his prior motion which was denied, in great measure, for insufficient evidentiary support.
Case information
| UID: | 2018-038-573 |
| Claimant(s): | THEODORE SIMPSON |
| Claimant short name: | SIMPSON |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 128330 |
| Motion number(s): | M-92289 |
| Cross-motion number(s): | |
| Judge: | W. BROOKS DeBOW |
| Claimant's attorney: | THEODORE SIMPSON, Pro se |
| Defendant's attorney: | BARBARA D. UNDERWOOD, Attorney General of the State of New York By: Jeane L. Strickland Smith, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | August 1, 2018 |
| City: | Saratoga Springs |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant, an individual incarcerated in a State correctional facility, filed this claim seeking compensation for lost property. Claimant now moves for reconsideration of a prior order denying claimant's motion for summary judgment dismissing the affirmative defenses in the answer. The prior order denied claimant's motion on the grounds that it was defective because it was not supported by copies of the pleadings and because claimant had "articulate[d] no arguments addressed to the merits of the affirmative defenses, and his submission contains mere assertions that he exhausted his administrative remedies and that his claim is meritorious, which lack evidentiary support" (Simpson v State of New York, UID No. 2018-038-537 [Ct Cl, DeBow, J. Apr. 10, 2018]). Defendant opposes the instant motion, which will be denied.
A motion for "reconsideration" of a prior order is not authorized by the CPLR, which provides that a party may seek permission to reargue or renew. A motion for leave to reargue "shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion" (CPLR 2221 [d][2]; see Schneider v Solowey, 141 AD2d 813 [2d Dept 1988]; Foley v Roche, 68 AD2d 558 [1st Dept 1979]). Such a motion does not permit an unsuccessful party to simply argue again the very question previously decided (see Fosdick v Town of Hempstead, 126 NY 651 [1891]; Matter of Mehta v Mehta, 196 AD2d 841, 842 [2d Dept 1993]; William P. Pahl Equip. Corp. v Kassis, 182 AD2d 22 [1st Dept 1992], lv dismissed in part, denied in part 80 NY2d 1005 [1992]). A motion to renew must be based on "new facts not offered on the prior motion that would change the prior determination or shall demonstrate that there has been a change in the law that would change the prior determination" (CPLR 2221 [e] [2]; see Alexy v Stein, 16 AD3d 989 [3d Dept 2005], lv dismissed in part, denied in part 5 NY3d 755 [2005]; Matter of Weinberg, 132 AD2d 190 [1st Dept 1987], lv dismissed 71 NY2d 994 [1988]). A party seeking permission to renew upon presentation of new facts must present a "reasonable justification for the failure to present such facts on the prior motion" (CPLR 2221 [e] [3]; see Bansbach v Zinn, 20 AD3d 629 [3d Dept 2005]).
Claimant here does not assert that the Court overlooked or misapprehended any matters of fact or law, nor does he contend that there are new facts or a change in the law that would change the Court's prior decision. Rather, he candidly asserts his motion is made because:
"[C]laimant is a pro Se litigant and should not be held to the standards of a trained and licensed Law Professional. Claimant, intends to clarify his position and offers the following reasoning behind failing to fully comply with the rules of the court, in hopes that a second look will be granted . . ."
(Simpson Affidavit, ¶ 7). Claimant asserts that he was under the impression that it would be unnecessary to file certain papers, particularly in light of his indigence (see id. ¶ 9), and he further comments upon the obstacles generally attendant to incarceration (see id. ¶ 11). None of claimant's assertions support a motion to renew or reargue. Essentially, claimant is acknowledging that his prior motion was insufficient, and he is requesting a second chance to present his motion, a form of relief that is simply unavailable. Although the submissions of a pro se litigant may be reviewed in a generous light (see Ali v State of New York, UID No. 2006-028-516 [Ct Cl, Sise, P.J., Feb. 7, 2006]; James v State of New York, UID No. 2018-038-536 [Ct Cl, DeBow, J. Apr. 6, 2018]), and the Court is not unaware of difficulties that pro se incarcerated litigants face, a pro se litigant must nevertheless be acquainted with the basic rules of procedure. If claimant is of the view that his prior motion was improperly decided, his avenue of relief lies in a direct appeal, not a request for a "do-over."
To the extent that claimant's motion can be viewed as one for permission to renew pursuant to CPLR 2221 (e), and to the further extent that claimant's motion sets forth new facts not offered in support of the prior motion, he does not offer any reasonable justification for his failure to present such facts on the prior motion. Moreover, review of claimant's submission and arguments reveals nothing that would persuade the Court to change its prior determination denying claimant's request for summary judgment and/or dismissal of affirmative defenses. Accordingly, it is
ORDERED, that claimant's motion number M-92289 is DENIED.
August 1, 2018
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims Papers considered: (1) Notice of Motion for Reconsideration on Summary Judgment Denial, dated May 9 2018; (2) Affidavit of Theodore Simpson in Support of Notion [sic] of Motion for Reconsideration on Summary Judgment Denial, sworn to May 9, 2018, with Exhibits; (3) Affirmation of Jeane L. Strickland Smith, AAG, in Opposition to Motion for Reconsideration, dated June 19, 2018; (4) Decision and Order in Simpson v State of New York, UID No. 2018-038-537 (Ct Cl, DeBow, J. April 10, 2018).