Opinion
# 2020-040-030 Claim No. 132787 Claim No. 132788 Motion No. M-95480
08-31-2020
ARTHUR MERCER v. THE STATE OF NEW YORK
Arthur Mercer, Pro Se LETITIA JAMES Attorney General of the State of New York By: Christina Calabrese, Esq., AAG
Synopsis
Pro se Claimant's Motion for reargument, pursuant to CPLR 2221(a), denied.
Case information
| UID: | 2020-040-030 |
| Claimant(s): | ARTHUR MERCER |
| Claimant short name: | MERCER |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 132787, 132788 |
| Motion number(s): | M-95480 |
| Cross-motion number(s): | |
| Judge: | CHRISTOPHER J. McCARTHY |
| Claimant's attorney: | Arthur Mercer, Pro Se |
|---|---|
| Defendant's attorney: | LETITIA JAMES Attorney General of the State of New York By: Christina Calabrese, Esq., AAG |
| Third-party defendant's attorney: | |
| Signature date: | August 31, 2020 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
For the reasons set forth below, Claimant's Motion pursuant to CPLR 2221(a), for reargument of this Court's prior Decisions and Orders dismissing the Claims following the issuance by the Court of Orders to Show Cause relating to service of the Claims (Mercer v State of New York, UID No. 2019-040-103 [Ct Cl, McCarthy, J., Nov. 8, 2019]; Mercer v State of New York, UID No. 2019-040-105 [Ct Cl, McCarthy, J., Nov. 8, 2019] ), is denied.
Claimant's Notice of Motion included Claim No. 132777 as part of this Motion, however, the Court's records indicate that Claim is still open.
Claim No. 132787 asserts that a District Attorney and an Assistant District Attorney submitted false and misleading papers to the Appellate Division, Third Department on the appeal of Claimant's criminal conviction, resulting in Claimant losing his freedom. In addition, Claimant believes the "Committee on Professional Standards" was negligent in failing to sanction the District Attorney for indicting Claimant as a John Doe.
Claim No. 132788 asserts that, on August 7, 2014, Claimant was arrested for a parole violation and, as of the date of the Claim, he had not had a final hearing, however, in 2016 he received a letter from the Parole Board notifying him that his jail time credit was being taken. Claimant seeks to have his jail time credit restored or to receive monetary damages for the negligent loss of his jail time credit.
These pro se Claims were filed in the Office of the Clerk of the Court on March 15, 2019. The State did not file a verified answer to either Claim. By separate Orders to Show Cause returnable September 25, 2019, the Court noted that Claimant may have failed to comply with the service requirements of § 11 of the Court of Claims Act. The parties were ordered to submit a written statement relating to service of the Claim. In response to the Court's orders, Defendant submitted two Affidavits of Debra L. Mantell, a Legal Assistant II in the Albany Office of the Attorney General. Ms. Mantell averred that she is familiar with the digital case management system of the Attorney General's office regarding notices of intention to file claims, claims, and motions that are received in the Attorney General's office and all correspondence received from the Court of Claims. She further stated that, upon a search of the records of the New York State Attorney General's office, no record was found that a Claim in either matter has been served on the Attorney General, however, Claimant did serve two Notices of Intention to File a Claim upon Defendant. Claimant submitted a statement stating that he served a Notice of Intention to File a Claim upon Defendant regarding each matter. However, Claimant provided no proof of service of either Claim upon the State of New York. Accordingly, the Court dismissed both Claims based upon Claimant's failure to comply with the service requirements of § 11 of the Court of Claims Act.
One Affidavit in regard to Claim No. 132787 (Motion No. M-94317) and one Affidavit in regard to Claim No. 132788 (Motion No. M-94319).
A motion for reargument, addressed to the discretion of the Court, is designed to afford a party an opportunity to establish that the Court overlooked or misapprehended the relevant facts or misapplied the controlling principle of law (Matter of Anthony J. Carter, DDS, P.C. v Carter, 81 AD3d 819, 820 [2d Dept 2011]; Adderley v State of New York, 35 AD3d 1043, 1043 [3d Dept 2006]). Its purpose is not to serve as a vehicle to permit an unsuccessful party to argue once again the very questions previously decided (Fosdick v Town of Hempstead, 126 NY 651, 652 [1891]; Matter of Anthony J. Carter, DDS, P.C. v Carter, supra at 820). If such a motion contains new proof, it is a "renewal" motion, rather than a "reargument" motion, and should be treated as such (Connors, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C2221:7 at 282; CPLR C2221:9 at 287). An application for leave to renew must be based upon newly discovered material facts that existed at the time the prior motion was made but which were not then known to the party seeking leave to renew, as well as a justifiable excuse for failing to present such facts to the Court in connection with the initial motion (Trump on the Ocean, LLC v State of New York, 79 AD3d 1325, 1326-1327 [3d Dept 2010]; Tibbits v Verizon N.Y., Inc., 40 AD3d 1300, 1302-1303 [3d Dept 2007]).
As Claimant's Motion contains no new proof, the Court considers the Motion to be one for reargument rather than renewal.
Upon a review of Claimant's Motion papers and the Court's Decisions upon the original motions, and upon due deliberation, the Motion for Reargument is denied as Claimant has failed to allege or establish that the Court overlooked or misapprehended the relevant facts or misapplied the controlling principle of law (Adderley v State of New York, supra; Matter of Anthony J. Carter, DDS, P.C. v Carter, supra). Claimant did not submit any proof which would change the Court's original determination that Claimant failed to serve either Claim upon Defendant.
Based upon the foregoing, Claimant's Motion is denied.
August 31, 2020
Albany, New York
CHRISTOPHER J. McCARTHY
Judge of the Court of Claims The following papers were read and considered by the Court on the motion for reargument: Papers Numbered Notice of Motion, Affidavit & Exhibit attached 1 Affirmation in Opposition 2 Filed Papers: Claim Nos. 132787, 132788