Opinion
# 2021-038-508 Claim No. 133944 Motion No. M-96203
01-19-2021
ALFRED DORSETTE v. THE STATE OF NEW YORK
ALFRED DORSETTE, Pro se No Appearance
Synopsis
Claimant's motion for leave to reargue and renew denied. Branch of motion seeking reargument denied because motion presented a matter of fact not before the Court when it decided the prior motion. Branch of motion seeking renewal denied because alleged misfeasance by USPS was not a sufficient basis upon which to grant renewal, and claimant failed to demonstrate a reasonable justification for his failure to present the new facts in connection with the prior motion.
Case information
| UID: | 2021-038-508 |
| Claimant(s): | ALFRED DORSETTE |
| Claimant short name: | DORSETTE |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 133944 |
| Motion number(s): | M-96203 |
| Cross-motion number(s): | |
| Judge: | W. BROOKS DeBOW |
| Claimant's attorney: | ALFRED DORSETTE, Pro se |
| Defendant's attorney: | No Appearance |
| Third-party defendant's attorney: | |
| Signature date: | January 19, 2021 |
| City: | Saratoga Springs |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant, an individual currently incarcerated in a State correctional facility, filed this claim seeking compensation for the alleged negligent interference with his right to practice his religion at Green Haven Correctional Facility (CF) on August 17, 2018. By Decision and Order dated February 26, 2020, the Court granted defendant's pre-answer motion to dismiss the claim for lack of jurisdiction due to untimely service of the claim on the Attorney General (see Dorsette v State of New York, UID No. 2020-038-524 [Ct Cl, DeBow, J., Feb. 26, 2020]). Claimant now moves for leave to renew and/or reargue the Court's February 26, 2020 Decision and Order. Defendant has not responded to the motion.
The CPLR provides that "[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, but shall not include any matters of fact not offered on the prior motion" (CPLR 2221 [d] [2]). A motion for leave to renew "shall be based upon 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]), and it must also "contain reasonable justification for the failure to present such facts on the prior motion" (CPLR 2221 [e] [3]).
The CPLR further provides that a motion for leave to reargue "shall be made within thirty days after service of a copy of the order determining the prior motion and written notice of its entry" (CPLR 2221 [d] [3]). Here, the Court's February 26, 2020 Decision and Order was filed and entered on May 11, 2020, and the instant motion was not filed until September 21, 2020. However, on March 20, 2020, Governor Cuomo issued Executive Order No. 202.8, which, among other things, directed that "any specific time limit for the commencement, filing, or service of any legal action, notice, motion, or other process or proceeding, as prescribed by the procedural laws of the state, including but not limited to [certain state laws], any other statute, local law, ordinance, order, rule, or regulation, or part thereof, is hereby tolled from the date of this executive order until April 19, 2020" (Executive Order No. 202.8, dated Mar. 20, 2020 [9 NYCRR 8.202.8] [emphasis added]). That directive was extended through successive Executive Orders, including Executive Order No. 202.67, which extended the directive a final time through "November 3, 2020, and after such date any such time limit will no longer be tolled" (Executive Order No. 202.67, dated Oct. 4, 2020 [9 NYCRR 8.202.67] [emphasis added]; see also Executive Order No. 202.72, dated Nov. 3, 2020 [9 NYCRR 8.202.72] ["the suspension for civil cases in Executive Order 202.8, as modified and extended in subsequent Executive Orders, that tolled any specific time limit for the commencement, filing, or service of any legal action, . . . as prescribed by the procedural laws of the state, including but not limited to . . . the court of claims act, . . . is hereby no longer in effect as of November 4, 2020]). Claimant's motion seeking leave to reargue thus was timely filed and served during the pendency of the Governor's Executive Orders.
Claimant argues, based upon a "previously unpresented Domestic Tracking Number Report from the [United States] Post [O]ffice," that his notice of intention to file a claim was received by the United States Post Office in Stormville, New York on November 8, 2018, and by the United States Post Office in Albany, New York, the next day, November 9, 2018 (Motion for Leave to Reargue and Renew Pursuant To CPLR § 2221 [f], ¶ 3). Claimant argues that the notice of intention was thus received in United States Post Office in Albany, New York, six days - which included four business days - before the expiration of the 90-day period within which to file the notice of intention, and that the United States Post Office's failure to deliver the notice of intention to the Attorney General within those six days "in and of itself, invokes the doctrine of equitable estoppel and allows the misfeasance or malfeasance on the part of the U.S. Post Office to be a proper excuse for failure to timely file" (id.). Claimant argues that the Court "misapprehended or overlooked the facts . . . implicating that the Post Office was responsible [for the delay], and not the Green Haven CF mailroom" (id. at ¶ 4; see id. at ¶ 6), and that, based on the documentary evidence in the form of the print-out from the United States Post Office, should apply the doctrine of equitable estoppel and hold that the failure of the United States Post Office to promptly deliver the notice of intention to the Attorney General is "a proper excuse" for the untimely service of the notice of intention (id. at ¶ 5). As noted above, defendant has not responded to the motion to renew and/or reargue.
The claim accrued on August 17, 2018, and thus the 90-day period within which to file the notice of intention to file a claim pursuant to Court of Claims Act § 10 (3) expired on November 15, 2018. As noted in the Court's February 26, 2020 Decision and Order, claimant's notice of intention was not served on the Attorney General until November 16, 2018, one day after the expiration of the 90-day period (see Dorsette v State of New York, UID No. 2020-038-524 [Ct Cl, DeBow, J., Feb. 26, 2020]).
As an initial matter, claimant's motion insofar as it seeks leave to reargue will be denied. The CPLR provides, as noted above, that a motion for reargument "shall not include any matters of fact not offered on the prior motion" (CPLR 2221 [d] [2]), and here, that branch of the motion that seeks reargument is based solely upon a print-out from the United States Postal Service (USPS) that claimant concedes was "previously unpresented" and that he argues demonstrates that the United States Post Office in Albany, New York, failed to deliver promptly his notice of intention to the Attorney General, thus resulting in its untimely service (Motion For Leave to Reargue and Renew Pursuant To CPLR § 2221 [f], ¶ 3). The motion thus presents a matter of fact that was not before the Court when it decided the prior motion to dismiss the claim, and the instant motion seeking leave to reargue will be denied.
Turning to that branch of claimant's motion that seeks leave to renew, as discussed above, the instant motion is based upon new facts that were not offered on the previous motion, namely, the print-out from the USPS. As claimant correctly notes, the Court held in its February 26, 2020 Decision and Order that claimant had failed to show any misfeasance or malfeasance on the part of officials in the Green Haven CF mail facility that would warrant application of the doctrine of equitable estoppel (see Dorsette, UID No. 2020-038-524, supra), and claimant now argues that the print-out demonstrates that the misfeasance or malfeasance was on the part of the United States Postal Service, and not officials in the Green Haven CF mail facility. However, in order to serve as a proper basis for a renewal motion, the new facts offered in connection with the renewal motion must be facts that would change the Court's prior determination.
As an initial matter, the USPS print-out attached as an exhibit to the motion does indicate, as claimant argues, that an item of mail was picked up from the post office in Stormville, New York on November 8, 2018, and that it was delivered to a post office in Albany, New York on November 9, 2018. The print-out further reflects that after being received in Albany on November 9, 2018, the item of mail was "in transit to next facility" on November 10 and 11, 2018, "enroute/processed" on November 12 and 13, 2018, "in transit to next facility" on November 14 and 15, 2018, and delivered to the Attorney General on November 16, 2018 (Motion For Leave to Reargue and Renew Pursuant To CPLR § 2221 [f], Exhibit A [Product Tracking & Reported, pg. 2]). To the extent that claimant's submission demonstrates any malfeasance or misfeasance by the USPS in delivering claimant's notice of intention to the Attorney General, it is immaterial to whether the doctrine of equitable estoppel may be invoked to excuse the late service. Rather, equitable estoppel applies to excuse late service only where the misfeasance or malfeasance of correctional facility officials causes a delay in the processing of legal mail (see Rivera v State of New York, 5 AD3d 881, 881 [3d Dept 2004]). Thus, any misfeasance or malfeasance by the USPS would not change the Court's prior decision dismissing the claim as untimely, and it is not a sufficient basis upon which to grant renewal. Moreover, as noted above, the CPLR requires that on this motion for leave to renew, claimant demonstrate a reasonable justification for his failure to present these facts - here, the USPS print-out - in connection with the prior motion to dismiss the claim, and claimant has made no such showing. As a result, his motion for leave to renew must be denied.
Accordingly, it is
ORDERED, that claimant's motion number M-96203 is DENIED.
January 19, 2021
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims Papers considered: 1. Claim No. 133944, filed November 8, 2019; 2. Motion For Leave To Reargue and Renew Pursuant To CPLR § 2221 (f), sworn to September 3, 2020, with Exhibit A; 3. Affidavit of Service of Alfred Dorsette, sworn to September 3, 2020; 4. Decision and Order, Dorsette v State of New York, UID No. 2020-038-524 (Ct Cl, DeBow, J., Feb. 26, 2020).