Opinion
# 2016-016-017 Claim No. 125945 Motion No. M-87897
03-14-2016
COREY HARRIS v. STATE OF NEW YORK
Corey Harris, Pro se Eric T. Schneiderman, Attorney General By: James E. Shoemaker, AAG
Synopsis
Case information
| UID: | 2016-016-017 |
| Claimant(s): | COREY HARRIS |
| Claimant short name: | HARRIS |
| Footnote (claimant name) : | |
| Defendant(s): | STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 125945 |
| Motion number(s): | M-87897 |
| Cross-motion number(s): | |
| Judge: | Alan C. Marin |
| Claimant's attorney: | Corey Harris, Pro se |
| Defendant's attorney: | Eric T. Schneiderman, Attorney General By: James E. Shoemaker, AAG |
| Third-party defendant's attorney: | |
| Signature date: | March 14, 2016 |
| City: | New York |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Corey Harris has moved to reargue this Court's Order dated September 14, 2015 and filed December 1, 2015, which had dismissed the claim he had brought for being given the wrong medication while incarcerated in the Sullivan Correctional Facility. The defendant's motion to dismiss the claim was granted on the grounds that the claim was untimely with respect to the 90-day period required by sections 10 (3) and 11 (a) (i) of the Court of Claims Act (the "Act"). See Dreger v New York State Thruway Auth., 81 NY2d 721 (1992) and Davis v State of New York, 89 AD3d 1287 (3d Dept 2011).
He was administered Sporanox on December 18, 2014, which was intended for another inmate who had the same last name.
Mr. Harris brings here what he entitles, a Motion to Reinstate Claim, "requesting a reconsideration of his claim that was dismissed" (paragraph 2). This kind of application is covered by CPLR Rule 2221, whether it be regarded as a motion to reargue or one to renew.
A motion for leave to reargue must be based upon matters of fact or law overlooked or misapprehended by the court in its prior order, but cannot include any facts not offered earlier (subdivision [d] of CPLR Rule 2221). See for example, Cioffi v S.M. Foods, Inc., 129 AD3d 888, 891-892 (2d Dept 2015). A motion for leave to renew must be based upon new facts not offered or new law that would change the prior determination; in cases involving new facts, there must be a reasonable justification for not presenting them in the earlier motion.
Subdivision (e) of CPLR Rule 2221; subdivision (f) allows for a combined motion of the two.
Harris' motion is insufficient to satisfy either subdivision (d) or (e) of Rule 2221; the Act's 90-day limitation period means that the claim must be served on the Attorney General and filed with the Clerk of the Court.
In view of the foregoing, and having considered the parties' submissions, IT IS ORDERED that motion No. M-87897 is denied. As the Court indicated on September 14, 2015, Mr. Harris may wish to avail himself of section 10 (6) of the Court of Claims Act, which establishes a method for permitting a late claim to go forward.
The following were reviewed: from claimant - - a Motion to Reinstate Claim [and] Affirmation in Support of Notice Requesting for Admission of Documents, and a Reply to Respondent's Opposition to Claimant's Motion to Reinstate Claim and to the Admission of Documents (with exhibit A); from defendant - - an Affirmation in Opposition to Claimant's Motion to Reinstate Claim and Affirmation in Support of Notice Requesting for Admission of Documents (with exhibits A through J).
March 14, 2016
New York, New York
Alan C. Marin
Judge of the Court of Claims