Opinion
# 2019-041-043 Claim No. 131048 Motion No. M-93773 Cross-Motion No. CM-93878
07-12-2019
PAUL WHITE v. THE STATE OF NEW YORK
PAUL WHITE Pro se HON. LETITIA JAMES New York State Attorney General By: Glenn C. King, Esq. Assistant Attorney General
Synopsis
Claimant's motion to reargue or renew his prior summary judgment motion is denied; defendant's cross-motion to dismiss the claim is granted in part and denied in part as follows: Defendant's request to dismiss the claim's wrongful confinement cause of action as untimely is denied where cause of action is arguably based on negligent, rather than intentional, conduct; the claim's 2-22-16 personal property cause of action was administratively withdrawn by claimant and is dismissed; the claim's 3-19-16 personal property cause of action alleging wrongful confinement is dismissed; defendant's request to dismiss the claimant's three 12-7-17 inmate personal property causes of action is denied where proof is insufficient to show causes of action were either administratively resolved or to show that claimant failed to exhaust his administrative remedies.
Case information
| UID: | 2019-041-043 |
| Claimant(s): | PAUL WHITE |
| Claimant short name: | WHITE |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 131048 |
| Motion number(s): | M-93773 |
| Cross-motion number(s): | CM-93878 |
| Judge: | FRANK P. MILANO |
| Claimant's attorney: | PAUL WHITE Pro se |
| Defendant's attorney: | HON. LETITIA JAMES New York State Attorney General By: Glenn C. King, Esq. Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | July 12, 2019 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant moves to reargue or renew (M-93773) his motion for summary judgment which was denied by the Court's Decision and Order filed March 18, 2019 (White v The State of New York, Claim No. 131048, Motion No. M-93230 [Milano, J., March 18, 2019]). Defendant opposes the claimant's motion to reargue or renew and cross-moves (CM-93878) to dismiss the claim. Claimant opposes the defendant's cross-motion to dismiss the claim.
The defendant's potentially dispositive cross-motion to dismiss the claim will be considered first.
Defendant argues that the claim's cause of action for wrongful confinement is untimely and the claim's bailment causes of action fail because each of the claim's five bailment causes of action lack merit because the cause of action (CA) was either withdrawn (2-22-16 CA), did not involve inmate personal property (3-19-16 CA), or was administratively investigated and found to be either resolved or meritless (three 12-7-17 CAs). Defendant further argues that claimant failed to exhaust his administrative remedies.
With respect to the claim's cause of action for wrongful confinement, the claim alleges that the inmate/claimant was wrongfully confined to pre-hearing keeplock at Clinton Correctional Facility from February 20, 2016 until March 14, 2016 as a result of being "falsely accused" (Defendant's Exhibit I) in an "erroneous Misbehavior Report" (Claim, para. 7) of committing an unhygienic act. The disciplinary hearing was not held until March 14, 2016 due to the earlier unavailability of correction officer witnesses. The disciplinary proceeding was dismissed after the hearing on March 14, 2016 and claimant was released from keeplock.
Court of Claims Act 10 (3) provides as follows:
"A claim to recover damages for injuries to property or for personal injuries caused by the negligence or unintentional tort of an officer or employee of the state while acting as such officer or employee, shall be filed and served upon the attorney general within ninety days after the accrual of such claim, unless the claimant shall within such time serve upon the attorney general a written notice of intention to file a claim therefor, in which event the claim shall be filed and served upon the attorney general within two years after the accrual of such claim." (emphasis added).
Court of Claims Act 10 (3-b) provides at relevant part as follows:
"A claim to recover damages for . . . personal injuries caused by the intentional tort of an officer or employee of the state while acting as such officer or employee . . . shall be filed and served upon the attorney general within ninety days after the accrual of such claim, unless the claimant shall within such time serve upon the attorney general a written notice of intention to file a claim therefor, in which event the claim shall be filed and served upon the attorney general within one year after the accrual of such claim." (emphasis added).
Courts have consistently held that "[a]s a condition of the State's limited waiver of sovereign immunity, those requirements [timely filing and service] are strictly construed and a failure to comply therewith is a jurisdictional defect compelling the dismissal of the claim" (Welch v State of New York, 286 AD2d 496, 497-498 [2d Dept 2001]; see Robinson v State of New York, 38 AD3d 1030 [3d Dept 2007]; Pizarro v State of New York, 19 AD3d 891, 892 [3d Dept 2005], lv denied 5 NY3d 717 [2005]).
In Matter of Kairis v State of New York (113 AD3d 942 [3d Dept 2014]), the court held that:
"The applicable statute of limitations for a claim of excessive confinement in the prison disciplinary context depends on whether the claim is predicated on intentional or negligent conduct (see Court of Claims Act § 10 [3], [3-b]; Ramirez v State of New York, 171 Misc 2d 677, 680-682 [1997]; cf. Vazquez v State of New York, 23 Misc 3d 1101[A], 2009 NY Slip Op 50527[U], n 2 [2009], affd 77 AD3d 1229 [2010]). Such a claim accrues 'upon a claimant's release from confinement' (Davis v State of New York, 89 AD3d 1287, 1287 [2011])"
The Kairis court thus explains that the applicable Court of Claims Act section 10 limitations period for negligent conduct resulting in excessive confinement is two years (Kairis, 113 AD3d at 942).
Here, the claim is based upon an "erroneous Misbehavior Report" charging claimant with "Unhygienic act" and, in particular, the claim alleges that the "alleged 'urine' [possessed in a jar by claimant] was, in fact, cocoa butter soap and water." The claim arguably sounds in negligently imposed wrongful confinement subject to a two-year limitations period.
A cause of action for wrongful confinement accrues on "the date on which [claimant's] confinement terminated" (Santiago v City of Rochester, 19 AD3d 1061, 1062 [4th Dept 2005], lv denied 5 NY3d 710 [2005]; Davis v State of New York, 89 AD3d 1287, 1287 [3d Dept 2011]). In this case, the wrongful confinement cause of action accrued on March 14, 2016.
On May 20, 2016, claimant served on defendant a notice of intention to file a claim with respect to his wrongful confinement cause of action.
As set forth in Court of Claims Act 10 (3), service of the notice of intention to file a claim on May 20, 2016 arguably provided claimant a two-year period, measured from the accrual date of March 14, 2016, in which to serve his negligence-based tort claim.
Claimant served his claim on February 27, 2018, within two years of accrual of the wrongful confinement cause of action.
Defendant's cross-motion to dismiss the claim's wrongful confinement cause of action is denied.
Defendant further seeks to dismiss the claim's bailment (inmate personal property) causes of action (see 7 NYCRR Part 1700, entitled "Inmate Personal Property Claims").
In particular, defendant argues that each of the claim's five bailment causes of action lack merit because the personal property claim was either withdrawn (2-22-16 CA), did not involve inmate personal property (3-19-16 CA), or was administratively investigated and found to be either resolved or meritless (three 12-7-17 CAs). Defendant further argues that claimant failed to exhaust his administrative remedies with regard to the bailment causes of action.
Claimant admits that he administratively withdrew his 2-22-16 personal property claim and that cause of action is dismissed.
The claim's 3-19-16 personal property claim, which alleges the same wrongful confinement cause of action considered above, is dismissed as beyond the purview of the administrative process detailed at 7 NYCRR Part 1700, entitled "Inmate Personal Property Claims."
The claimant's three 12-7-17 inmate personal property CAs apparently involve the alleged loss of court transcripts and damage to, or loss of, a typewriter. Claimant's affidavit in opposition to the defendant's cross-motion denies that claimant ever received the allegedly lost court transcripts and asserts that his typewriter was "irreparably damaged" and would cost more to repair than its "replacement value."
Viewing the evidence presented on the defendant's dismissal cross-motion most favorably to the party opposing the motion, as required in assessing a request for dismissal, the Court finds that the opposition offered by claimant raises issues of fact requiring a trial as to the three 12-7-17 inmate personal property CAs.
The Court further finds that the record is inconclusive as to whether claimant failed to exhaust his administrative remedies with respect to claimant's three 12-7-17 inmate personal property CAs, especially in view of claimant's sworn assertion that defendant failed "to timely respond to CLAIMANT'S CLAIM appeals . . . and thereby, CLAIMANT was constructively prevented from exhausting his administrative remedies."
The defendant's cross-motion to dismiss the claim is denied in part and granted in part, as follows: Defendant's request to dismiss the claim's wrongful confinement cause of action as untimely is denied; the claim's 2-22-16 personal property CA is dismissed; the claim's 3-19-16 personal property CA is dismissed; defendant's request to dismiss the claimant's three 12-7-17 inmate personal property CAs is denied.
Claimant's motion to reargue or renew the claimant's prior motion for summary judgment, which was denied by the Court's Decision and Order filed March 18, 2019 (White v The State of New York, Claim No. 131048, Motion No. M-93230 [Milano, J., March 18, 2019]), is denied.
The Court notes that a motion to reargue is "made on the papers submitted on the original motion" (Phillips v Village of Oriskany, 57 AD2d 110, 113 [4th Dept 1977]). Claimant has not provided a copy of "the papers submitted on the original motion" in his motion to reargue.
Additionally, in determining a motion, the court may only consider documents and exhibits which have been served upon all parties (CPLR 2214 [c]). As set forth above, claimant has failed to serve the papers submitted on the original motion on the Attorney General. Therefore, the papers submitted on the original motion cannot be considered even if the Court were to attempt to retrieve those papers from the Clerk of the Court of Claims, which it has no obligation to do (Sheedy v Pataki, 236 AD2d 92, 97-98 [3d Dept 1997], lv denied 91 NY2d 805 [1998]).
Beyond these fatal procedural infirmities, "[i]t is well settled that 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" (Peak v Northway Travel Trailers, Inc., 260 AD2d 840, 842 [3d Dept 1999]).
Claimant has not shown that the Court "overlooked or misapprehended" the relevant facts or law in its prior determination (see CPLR 2221 [d] [2]).
A motion to renew "shall be based upon new facts not offered on the prior motion that would change the prior determination . . . [and] shall contain reasonable justification for the failure to present such facts on the prior motion" (CPLR 2221 [e] [2] and [3]). Further, "[r]enewal is not a means by which to remedy the failure to present evidence which, with due diligence, could have been produced at the time of the original motion" (Kahn v Levy, 52 AD3d 928, 930 [3d Dept 2008]).
Claimant has offered no new facts in admissible form which would change the prior determination and, assuming such admissible facts had been offered, has provided no "reasonable justification for the failure to present such facts on the prior motion" (CPLR 2221 [e] [3]).
For all of the foregoing reasons, the claimant's motion (M-93773) is denied.
July 12, 2019
Albany, New York
FRANK P. MILANO
Judge of the Court of Claims
Papers Considered:
1. Claimant's Motion To Reargue Or Renew, filed April 17, 2019; 2. Affidavit of Paul White, sworn to April 13, 2019, and attached exhibits; 3. Defendant's Notice of Cross-Motion, filed April 30, 2019; 4. Affirmation of Glenn C. King, dated April 30, 2019, and attached exhibits; 5. Claimant's Reply Affidavit, sworn to May 7, 2019, and attached exhibits; 6. Claimant's Affidavit in Opposition to Cross-Motion, sworn to May 19, 2019 and attached exhibit.