Opinion
# 2016-038-502 Claim No. 119778 Motion No. M-86976 Motion No. M-87376
01-20-2016
DIANE WORDv. STATE OF NEW YORK
DIANE WORD, Pro se ERIC T. SCHNEIDERMAN, Attorney General of the State of New York By: Thomas R. Monjeau, Assistant Attorney General
Synopsis
Claimant's eighth and ninth motions for reconsideration of Decision and Order dismissing the claim on jurisdictional grounds denied. Chief Clerk directed to return to claimant all future motions addressed to this claim.
Case information
| UID: | 2016-038-502 |
| Claimant(s): | DIANE WORD |
| Claimant short name: | WORD |
| Footnote (claimant name) : | |
| Defendant(s): | STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 119778 |
| Motion number(s): | M-86976, M-87376 |
| Cross-motion number(s): | |
| Judge: | W. BROOKS DeBOW |
| Claimant's attorney: | DIANE WORD, Pro se |
| Defendant's attorney: | ERIC T. SCHNEIDERMAN, Attorney General of the State of New York By: Thomas R. Monjeau, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | January 20, 2016 |
| City: | Saratoga |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant, an individual incarcerated in a State correctional facility, makes two motions addressed to a prior decision and order of this Court dismissing her claim for lack of subject matter jurisdiction (see Word v State of New York, UID No. 2011-038-565 [unreported decision] [Ct Cl, DeBow, J., Nov. 14, 2011]). The first motion (M-86976) seeks to renew under CPLR 2221 (a), citing an Article 78 decision in Matter of Word v New York State Bd. of Parole (Sup. Ct, Albany County, Index No. 2356-14) as a basis for relief. The second motion (M-87376) seeks an order under CPLR 5015 (a)(3) vacating the Court's prior decision and order on the grounds that defendant's agents engaged in fraud, misrepresentation or other misconduct. Defendant opposes the motions.
As noted above, the claim was dismissed for lack of subject matter jurisdiction (see Word v State of New York, UID No. 2011-038-565). Claimant twice moved to reargue, and both motions were denied on the ground that the motion failed to demonstrate that the Court had overlooked or misapplied any matter of fact or law in its prior decision and order (see Word v State of New York, UID No. 2011-038-585 [Ct Cl, DeBow, J., Dec. 23, 2011]; Word v State of New York, UID No. 2012-038-536 [unreported decision] [Ct Cl, DeBow, J., June 25, 2012]). Claimant's ensuing motion to renew was denied on the ground that she had failed to show any new fact that would change the outcome of the prior decision (see Word v State of New York, UID No. 2012-038-571 [Ct Cl, DeBow, J., Oct. 10, 2012]). Claimant's application for a writ of error coram nobis was denied as meritless because it was improperly made (see Word v State of New York, UID No. 2013-038-510 [Ct Cl, DeBow, J., Jan. 28, 2013]). Two additional motions to renew were subsequently made by claimant and denied because those motions were based on decisional law that pre-dated 2011 and would not have altered the Court's original decision on the motion (see Word v State of New York, UID No. 2014-038-504 [Ct Cl, DeBow, J., Feb. 10, 2014]; Word v State of New York, UID No. 2014-038-516 [unreported decision] [Ct Cl, DeBow, J., Apr. 29, 2014]). Finally, claimant's last motion to renew, which referred to the Article 78 decision in Matter of Word v New York State Bd. of Parole (citation above) was denied primarily because the motion was not supported by a copy of the Article 78 decision, thus precluding meaningful consideration of the motion (Word v State of New York, Court of Claims, Claim No. 119778, [unreported decision] [DeBow, J., June 22, 2015]).
On November 25, 2011, claimant filed a notice of appeal of the Court's decision and order dismissing her claim. Claimant apparently abandoned the appeal, as no published decision by the Appellate Division can be found, and none has been brought to the attention of this Court.
Claimant's motion seeking renewal is her eighth application under CPLR 2221 addressed to the Court's prior order dismissing her claim for lack of subject matter jurisdiction. Inasmuch as claimant's motion to renew is based on nearly identical grounds as her most recent motion seeking renewal, and because it is again unsupported by Supreme Court's decision in the Article 78 proceeding, it will be denied for the reasons set forth in this Court's prior decision (see id.). Further, to the extent that claimant asserts in her reply submission that there is newly discovered evidence of defendant's fraud, misrepresentation or other misconduct that would constitute new facts requiring a change in the prior determination, claimant's unsworn and conclusory allegations of misconduct are lacking in evidentiary value and are insufficient to make any demonstration in favor of renewal. Finally, to the extent that claimant's motion could be construed as a motion to reargue based upon its reference to decisional law that pre-dates the initial decision dismissing this claim in 2011, the motion is untimely (see CPLR 2221 [d][3]), and even if timely, claimant has once again failed to demonstrate that the Court had overlooked or misapplied any matter of law in its prior decision and order.
Although claimant makes a declaration under penalty of perjury in her reply submission, and although a declaration under the penalty of perjury may be a permissible substitute for a sworn instrument or affidavit in federal proceedings (see 28 USCA § 1746), such a declaration is not of any force in proceedings in State court (see e.g. Wigfall v State of New York, UID No. 2004-019-599 [Ct Cl, Lebous, J., Dec. 7, 2004]).
Claimant's motion pursuant to CPLR 5015 to vacate the 2011 decision and order on the ground that defendant's agents engaged in fraud, misrepresentation or other misconduct will likewise be denied. Claimant's unsworn submission alleging fraud, misrepresentation or other misconduct lacks any evidentiary value. Moreover, even if claimant's submission was properly sworn, her conclusory and unsupported allegations of fraud, misrepresentation or other misconduct are insufficient to demonstrate her entitlement to relief.
Although claimant's submission is styled as a "sworn" declaration, there is no evidence from her submission that she was administered an oath. Further, as discussed in footnote 2, supra, claimant's declaration under penalty of perjury is of no force in proceedings in State courts.
Again, to the extent that defendant seeks the imposition of monetary sanctions against claimant for frivolous conduct in the filing of these two motions, it will be denied and not considered in the absence of a motion or cross-motion by defendant seeking such relief on notice. However, claimant has now submitted nine motions seeking reconsideration of the Court's decision and order dismissing the claim, all of which have been patently lacking in merit. Claimant's repetitive and meritless motion practice has unnecessarily taxed Court resources, and claimant has sufficiently demonstrated that absent action by the Court, she will persist in such improper motion practice. Accordingly, the Court will not entertain any further motions from claimant on this claim, and should she file any further motion on this claim, the Chief Clerk will be directed to return it to claimant.
Accordingly, it is
ORDERED, that claimant's motion M-86976 is DENIED; and it is further
ORDERED, that claimant's motion M-87376 is DENIED; and it is further
ORDERED, that in the event any further motions are filed by claimant on claim No. 119778, the Chief Clerk of the Court of Claims shall not accept such and shall return any such motion(s) to claimant.
January 20, 2016
Saratoga , New York
W. BROOKS DeBOW
Judge of the Court of Claims Papers considered: (1) Claim number 119778, filed April 26, 2011; (2) Decision and Order in Word v State of New York, UID No. 2011-038-565 (Ct Cl, DeBow, J., filed Nov. 14, 2011); (3) Notice of Appeal of the Decision and Order in Word v State of New York, UID No. 2011-038-565 (Ct Cl, DeBow, J., October 26, 2011), filed November 25, 2011; (4) Decision and Order in Word v State of New York, UID No. 2011-038-585, (Ct Cl, DeBow, J., December 23, 2011); (5) Decision and Order in Word v State of New York, UID No. 2012-038-536, (Ct Cl, DeBow, J., filed June 25, 2012); (6) Decision and Order in Word v State of New York, UID No. 2012-038-571, (Ct Cl, DeBow, J., October 10, 2012); (7) Decision and Order in Word v State of New York, UID No. 2013-038-510, (Ct Cl, DeBow, J., January 28, 2013); (8) Decision and Order in Word v State of New York, UID No. 2014-038-504 (Ct Cl, DeBow, J., February 10, 2014); (9) Decision and Order in Word v State of New York, UID No. 2014-038-516 (Ct Cl, DeBow, J., April 29, 2014); (10) Decision and Order in Word v State of New York, Court of Claims, Claim No. 119778, unreported decision [DeBow, J., April 2, 2015]). (11) Notice of Motion (M-86976), dated July 7, 2015; (12) Declaration of Diane Word in Support of Motion CPLR 2221 (a) to Vacate Order, dated July 7, 2015; (13) Affirmation of Thomas R. Monjeau, AAG, in Opposition, dated July 21, 2015; (14) Declaration of Diane Word in Support of Claimant's Objection to Defendant's Opposition Affirmation, filed July 30, 2015; (15) Notice of Motion (M-87376), dated September 15, 2015; (16) "Sworn" Declaration of Diane Word in Support of Motion CPLR 5015 (a)(3) to Vacate, dated September 15, 2015; (17) Affirmation of Thomas R. Monjeau, AAG, in Opposition, dated September 29, 2015; (18) "Sworn" Declaration of Diane Word in Support of Claimant's Objection to Defendant's Opposition Affirmation, dated October 5, 2015; (19) Decision and Order in Matter of Word v New York State Bd. of Parole, 2014 NY Slip Op 30969(U) (Sup Ct, Albany County 2014).