Opinion
# 2021-032-001 Claim No. 133981 Motion No. M-95816
01-05-2021
JEREMY FULTON v. STATE OF NEW YORK
Jeremy Fulton, Pro Se Hon. Letitia James, Attorney General By: Douglas R. Kemp, AAG
Synopsis
Claimant's motion to reargue is denied.
Case information
| UID: | 2021-032-001 |
| Claimant(s): | JEREMY FULTON |
| Claimant short name: | FULTON |
| Footnote (claimant name) : | |
| Defendant(s): | STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 133981 |
| Motion number(s): | M-95816 |
| Cross-motion number(s): | |
| Judge: | JUDITH A. HARD |
| Claimant's attorney: | Jeremy Fulton, Pro Se |
| Defendant's attorney: | Hon. Letitia James, Attorney General By: Douglas R. Kemp, AAG |
| Third-party defendant's attorney: | |
| Signature date: | January 5, 2021 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant, an inmate proceeding pro se, filed the instant claim with the Clerk of the Court on November 15, 2019. The claim alleges a cause of action for negligence, specifically that defendant misplaced a motion filed by claimant on November 29, 2010 and that as a result, claimant was unable to file an appeal. By Decision and Order filed on August 5, 2020, this Court granted defendant's motion to dismiss the claim on the ground that the claim was improperly served by regular mail and not by certified mail, return receipt requested as required by Court of Claims Act § 11 (b). Claimant has now filed the instant motion seeking to reargue the motion pursuant to CPLR 2221. Defendant opposes the motion on the ground that claimant has not identified any matter of law or fact which was misapprehended by the Court in said determination.
A motion to reargue is addressed to the sound discretion of the Court and requires the moving party to demonstrate that the Court overlooked or misapprehended matters of fact or misapplied existing law to the facts presented (CPLR 2221 [d]; see Loris v S & W Realty Corp., 16 AD3d 729, 730 [3d Dept. 2005]; Peak v Northway Travel Trailers, 260 AD2d 840 [3d Dept. 1999]; Spa Realty Assoc. v Springs Assoc., 213 AD2d 781 [3d Dept. 1995]). The Court finds that claimant has failed to show that it overlooked or misapprehended matters of fact or misapplied the law.
Claimant argues that the Court misapplied the law in dismissing his claim because the accrual date is later than the date stated in the claim as he did not discover the wrong until an unspecified later date. However, it is well-settled that the "discovery rule" does not apply to negligence claims to extend the statute of limitations (Gerschel v Christensen, 143 AD3d 555, 556 [1st Dept. 2016]; Carter v State of New York, 284 AD2d 810, 810 [3d Dept. 2001]).
Accordingly, claimant's motion to reargue (M-95816) is DENIED.
January 5, 2021
Albany, New York
JUDITH A. HARD
Judge of the Court of Claims Papers Considered: 1. Notice of Motion, dated August 11, 2020; Affidavit & Motion to Reargue Pursuant C.P.L.R. 2221. 2. Affirmation of Douglas R. Kemp, AAG, affirmed on September 7, 2020. 3. Reply Pursuant to C.P.L.R. 2221 & 2001, sworn to by claimant on September 15, 2020.