Opinion
# 2013-049-046 Claim No. 121803 Motion No. M-83605
08-28-2013
ROBERT MONTALVO v. THE STATE OF NEW YORK
Synopsis
The Court denied pro se claimant's application to renew/reargue the Court's prior decision and order granting defendant's pre-answer motion to dismiss as untimely a claim alleging a violation of the Americans with Disabilities Act.
Case information
UID: 2013-049-046 Claimant(s): ROBERT MONTALVO Claimant short name: MONTALVO Footnote (claimant name) : Defendant(s): THE STATE OF NEW YORK Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): 121803 Motion number(s): M-83605 Cross-motion number(s): Judge: DAVID A. WEINSTEIN Claimant's attorney: Robert Montalvo, Pro Se Eric T. Schneiderman, New York State Attorney Defendant's attorney: General By: Daniel Chu, Assistant Attorney General Third-party defendant's attorney: Signature date: August 28, 2013 City: Albany Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
By claim filed October 1, 2012, pro se claimant Robert Montalvo alleged that he was denied a parking pass by his employer, the New York State Office of Court Administration, which thus failed to accommodate his disability in violation of the Americans with Disabilities Act ("ADA"). By Decision and Order filed April 3, 2013 (the "April 3 Decision"), I dismissed Montalvo's claim as time-barred (Montalvo v State of New York, UID No. 2013-049-013 [Ct Cl, Weinstein, J., Mar. 6, 2013]). Specifically, I found that Montalvo failed to file and serve his claim within the 90-day accrual period set forth by Court of Claims Act § 10(3) or the six-month period set by Court of Claims Act § 10(4). Further, I found that his receipt of a right to sue letter from the Equal Employment Opportunity Commission ("EEOC" or "Commission") did not alter these timeframes, and in any event his suit was not brought within the deadline set by that letter.
Claimant now moves "for reconsideration" of the April 3 Decision. Claimant argues that: (1) he had asked a "worker" at the EEOC to appeal its determination denying his charge, in the belief that it would stop his time to sue from running; (2) his action is "seeking justice and should go forward as [claimant] would like [his] day in court"; and (3) he is pro se and was homebound convalescing from surgery when he received the Commission's correspondence informing him of its determination. Defendant has filed an affirmation in opposition by Assistant Attorney General Daniel Chu.
As the opposing submission points out, there is no such thing as a "motion for reconsideration," and Montalvo presumably seeks leave to "renew" or "reargue." To succeed on a motion to renew, claimant must show "new facts not offered on the prior motion that would change the prior determination or . . . demonstrate that there has been a change in the law that would change the prior determination," as well as present a "reasonable justification for the failure to present such facts on the prior motion" (CPLR 2221[e][2]-[3]). A motion to reargue, on the other hand, must be brought within thirty days "after service of a copy of the order determining the prior motion and written notice of its entry," and point out "matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion." A claimant cannot present, on a motion to reargue, "arguments different from those tendered on the original application" (Foley v Roche, 68 AD2d 558, 567-568 [1st Dept 1979], appeal after remand 86 AD2d 887 [2d Dept 1982], appeal denied 56 NY2d 507 [1982]; see also CPLR 2221[d][2] [motion "shall not include any matters of fact not offered on the prior motion").
Claimant's arguments meet neither standard. Montalvo's statement that he sought to appeal the EEOC's determination has no impact on the timeliness of his claim. As noted in my original opinion, claimant's filing of his charge with the EEOC did not relieve him of the need to comply with the deadlines set forth in the Court of Claims Act. Whatever additional steps he took to seek further administrative review before the Commission, then, cannot render his claim timely under state law.
Montalvo's other arguments are essentially equitable: he should be allowed to proceed with his untimely action because he "seeks justice," and he should be given greater leeway because he is representing himself and suffered from a medical condition. While claimant undoubtedly feels strongly regarding his action, that is true of any individual that seeks relief from this Court, and I cannot waive the applicable limitations period on this ground. Nor does claimant's pro se status excuse his untimely filing (see Johnson v Title N, Inc., 31 AD3d 1071, 1072 [3d Dept 2006] ["in the renewal context, . . . [a] pro se litigant acquires no greater rights than any other litigant"] [citations and internal quotations omitted]). As to claimant's contention that he was convalescing when he received the EEOC letter, it is unavailing. At that point, the claim was already time-barred, and in any event such medical condition provides no basis to toll a limitations period (see Eisenbach v Metropolitan Transp. Auth., 62 NY2d 973 [1984] [appellant not entitled to toll of limitations period during "68-day period following . . . accident during which appellant, while hospitalized and treated with strong pain-killing drugs, was, in his words, 'generally confused, disoriented, and unable to effectively attend to [his] affairs'"]; Stalker v Luria, 217 AD2d 294 [3d Dept 1995] [plaintiff's quadriplegia did not toll limitations period]).
For these reasons, claimant's motion M-83605 is denied.
Finally, defendant asks the Court to enjoin claimant from making further filings in regard to this case without leave of the Court, so as to prevent the imposition of further burdens on the State. While I am sympathetic to this request, the submission of a single post- judgment motion would not normally warrant such relief. Claimant is cautioned, however, that filing further meritless motions in this matter will result in such an injunction.
August 28, 2013
Albany, New York
DAVID A. WEINSTEIN
Judge of the Court of Claims
Papers Considered:
1. Claimant's Notice of Motion, and supporting papers.
2. Defendant's Affirmation in Opposition to Motion for Reconsideration, and annexed exhibits.