Matter of Platten v Bezio

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Matter of Platten v Bezio 2011 NY Slip Op 33211(U) December 1, 2011 Sup Ct, Albany County Docket Number: 621-11 Judge: George B. Ceresia Jr Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] STATE OF NEW YORK SUPREME COURT COUNTY OF ALBANY In The Matter of the Application of John Platten, 90-C-0145, Petitioner, For A Judgment Pursuant to Article 78 of the Civil Practice Law and Rules, -againstNORMAN BEZIO, as Director of Special Housing and Inmate Disciplinary Programs, Respondent. Supreme Court Albany County Article 78 Term Hon. George B. Ceresia, Jr., Supreme Court Justice Presiding RJI # 01-1 1-ST2359 Index No. 621-1 1 Appearances : John Platten, DIN # 90-C-0 145 Petitioner, Pro se Oneida Correctional Facility 6100 School Road Rome, NY 13440 Eric T. Schneiderman Attorney General State of New York Attorney For Respondent The Capitol Albany, New York 12224 (Cathy Y. Sheehan, Assistant Attorney General of Counsel) DECISION/ORDER George B. Ceresia, Jr., Justice I hepetitioner, an inmate at Oneida Correctional Facility is serving an indeterminate smknce with a maximum term of life. He was found guilty of violating prison rules after [* 2] a Tier I11 disciplinary hearing held on April 29,2009. The determination was reviewed and a(lministrative1yaffirmed on June 2, 2009. The petitioner thereafter commenced a CPLR Article 78 proceeding, which was transferred to the Third Department Appellate Division. The Appellate Division, on May 27, 2010, issued a decision modiQing the disciplinary determination by dismissing one of the charges, and remitting the matter back to the Department of Correctional Services for an administrative redetermination of the penalty with respect to the remaining violations (see Matter of Platten v Bezio, 73 AD3d 1419 [3d Dept., 20 lo]). Upon remittal, in a decision dated June 15,2010, the respondent modified the penalty, as relevant here, by reducing the recommended good time withheld from twelve months to nine months. In letters dated September 13,2010 and October 14,2010 addressed to the Chairman of the Time Allowance Committee, the petitioner requested that he be permitted to appear before the Time Allowance Committee to determine the amount of good time, if any, to be restored. This request was denied, apparently on October 15,20 10. By letter dated October 16,2010 the petitioner attempted to appeal the decision of the Time Allowance Committee. By letter dated October 25, 2010, Lucien J. Leclair,c, Jr., Dcyuty CoiniiiiLAicwi. of thc: Department of Correctional Services, indicated that petitioner s good time is not subject to review by the facility Time Allowance Committee since he does not have a maximum expiration date. He further indicated that the petitioner may be eligible for a Limited Credit Time Allowance (see Correction Law 0 803-b), but only after the expiration of five years without any further recommended loss of good time. On November 2,20 10 and December 28, 20 10, in letters addressed to the respondent, the petitioner requested reconsideration. 2 [* 3] Respondent made a motion to dismiss the petition on grounds that the applicable statute of limitations had expired before the proceeding was commenced. In a decision dated June 22, 201 1 the Court denied the motion, finding that the respondent never provided evidence to establish when the cause of action accrued, and therefore did not establish when the four month statute of limitation (see CPLR 2 17) commenced to run. The respondent has made a second motion to dismiss on statute of limitation grounds. This time, the respondent has submitted an affidavit which demonstrates that the June 15, 20 10 determination was received by the petitioner on June 2 1,20 10. The petitioner opposes the motion, arguing that the respondent failed to timely move for leave to reargue, in violation of CPLR 2221 (d); and that as a motion to renew, the additional information was readily available at the time that the prior motion was made, and the respondent has failed to present reasonablejustification for the failure to present such facts on the prior motion (e CPLR 222 1 [e]). A motion to reargue, directed to the sound discretion of the Court, must demonstrate that the Court overlooked, misapplied or misapprehended the relevant facts or law (see, CPLR 2221 [d] [2]; Loris v S & W Realty Corp., 16 AD3d 729, 730 [31d Dept., 20051; Matter of Smith v Town of Plattekill, 274 AD2d 900,901-902 [3d Dept., 20001; Sua Realty Associates v. Springs Associates, 2 13 AD2d 78 1, 783 [3rd Dept., 19951; Grassel v Albany MedicalCenm, 223 AD2d 803, 803 [3rd Dept., 19961). Its purpose is not to serve as a vehicle to permit the unsuccessful party to argue once again the very questions previously decided (see, Foley v Roche 68 AD2d 558,567 [ 1st Dept., 1979]), lv denied 56 NY2d 507). 3 [* 4] A motion to renew must be based upon newly discovered evidence which existed at the time the prior motion was made, but was unknown to the party seeking renewal (see CPLR 222 1 [e] [2]; M & R Ginsburg, LLC v Orange Canyon Development Company. LLC, 84 AD3d 1470,1472 [3d Dept., 20 111; 2 North Street Corporation v Getty Sauperties Corporation, 68 AD3d 1392,1396-1397 [3rdDept., 20091; First Union Bank v Williams, 45 AD3d 1029, 1030-1031 [3rdDept., 20071; Spa Realty Associates v. Springs Associates, supra, at p. 783; Grassel v. Albany Medical Center, supra, at p. 804), or upon a demonstration that there has been a change in the law that would change the prior determination (see,CPLR 222 1 [e] [2]). It must also demonstrate a reasonable justification for not placing such new facts before the Court on the original application (see,CPLR 222 1 [e] [3]; Matter of Mouawad, 6 1 AD3d 1 169 [3rdDept., 20091; First Union Bank v Williams, supra; see also, Spa Realty Associates v. Springs Associates, supra, at p. 783-784; Grassel v. Albany Medical Center, supra, at p. 804; Barnes v State, 159 AD2d 753,753,754 [3rd Dept., 19901). Renewal is not a means by which to remedy the failure to present evidence which, with due diligence, could have been produced at the time of the original motion (Kahn v Levy, 52 AD3d 928, 930 [3rd Dept.,2008], citing Tibbits v Verizon N.Y,l.nc.., 40 AD3d 1300, at 1303, Johnson v Title--._: Inc 31 AD3d at 1072, Matter of Cooke Ctr. for LearninP & Dev v Mills, 19 AD3d at 837, 3 and N.A.S. Partnership v Kligerman, 27 1 AD2d 922,923 [2000]). The respondent s motion is predicated upon his contention that the petitioner seeks to review the June 15, 20 10 administrative determination which modified the disciplinary penalty by reducing the recommended loss of good time from twelve months to nine months. The petitioner, on the other hand, denies that he seeks to review the June 15, 2010 4 [* 5] determination, (although he still maintains that he seeks to have the recommended loss of good time removed from his record). Addressing the respondent s motion, the Court finds that it must be denied. First, as a motion to reargue, the respondent has not demonstrated how or in what respect the Court overlooked, misapplied or misapprehended the relevant facts or law in its prior decision. Second, as a motion to renew, the respondent failed to demonstrate reasonable justification for respondent s failure to submit the new evidence on the prior motion. One further point should be made. In the Court s view, the respondent may still properly assert an affirmative defense in its answer predicated upon the statute of limitations (see Zito v County of Suffolk, 81 AD3d 61 1 [2d Dept., 201 11). In &, the County of Suffolk made a motion to dismiss pursuant to CPLR 32 1 1 (a) (l), (5) and (7) based on the statute of limitations and the statute of frauds. The lower court denied the motion. The lower court also denied the County s subsequent motion to amend its answer to assert the same affirmative defenses. The Appellate Division reversed, finding that the order denying the County s CPLR 321 1 dismissal motion did not determine, as a matter of law, that the affirmative defenses had no merit. The Appellate Division granted the County s motion to aiiimd ,ik answer to assert the same afiirmative defenses. The Court concludes that the motion must be denied, subject to respondent s right to assert the statute of limitationr; defense in its answer. Accordingly, it is ORDERED, that respondent s motion to dismiss be and hereby is denied, subject to 5 [* 6] respondent s right to raise the statute of limitations defense in its answer; and it is further ORDERED, that respondent be and hereby is directed to serve and file an answer within thirty (30) days of the date hereof; and it is further ORDERED, that respondent re-notice the proceeding in conformity with CPLR 7804 (0;and it is further ORDERED, that the proceeding, after being re-noticed, shall be referred to the undersigned for disposition. This shall constitute the decision and order of the Court. The Court will retain the papers until final disposition of the proceeding. ENTER December / ,201 1 Troy, New York Dated: r Supreme Court Justice Papers Considered: 1. 2. 3. Order To Show Cause dated February 3,20 1 1, Petition, Supporting Papers and Exhibits Respondent s Notice nf Motion dated July 2 1, 20 1 1, Supporting Papers and Exhibits Petitioner s Reply Dated July 26,201 1 6

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