                            State of New York
                     Supreme Court, Appellate Division
                        Third Judicial Department
Decided and Entered: May 19, 2016                        520731
________________________________

GENARO CAMPOS,
                      Appellant,
     v                                        MEMORANDUM AND ORDER

STATE OF NEW YORK,
                    Respondent.
________________________________


Calendar Date:   February 9, 2016

Before:   Peters, P.J., McCarthy, Egan Jr. and Lynch, JJ.

                               __________


     Genaro Campos, Yonkers, appellant pro se.

      Eric T. Schneiderman, Attorney General, Albany (Owen Demuth
of counsel), for respondent.

                               __________


Lynch, J.

      Appeal from an order of the Court of Claims (Weinstein,
J.), entered December 19, 2014, which, among other things,
granted defendant's cross motion to dismiss the claim.

      Claimant, an inmate, spent time in the special housing unit
as a result of prison disciplinary determinations that were
ultimately reversed on administrative appeal and expunged from
his institutional record. He was released from the special
housing unit on January 11, 2013. In August 2013 and October
2013, he filed documents purporting to be notices of intention to
file a claim with the Attorney General based upon his unlawful
confinement, but the documents were rejected because they were
not notarized and/or verified. In November 2013, he filed a
notice of intention to file a claim in proper form with the
Attorney General. In December 2013, he filed a claim alleging
                               -2-                520731

that defendant committed an intentional tort by unlawfully
confining him. Defendant served an answer raising a number of
affirmative defenses, including that the Court of Claims lacked
jurisdiction because neither the claim nor the notice of
intention to file a claim were timely filed within 90 days of the
accrual of the claim in accordance with Court of Claims Act §§ 10
and 11.1

      Thereafter, claimant moved for summary judgment and the
motion was denied by the Court of Claims in June 2014. Claimant,
in turn, moved for "reconsideration" and defendant cross-moved
for dismissal of the claim. Claimant then served a reply seeking
permission to file a late claim. Although the Court of Claims
indicated that it was denying claimant's motion for
"reconsideration," it proceeded to consider the merits of
claimant's arguments, as well as the substance of defendant's
cross motion. It ultimately granted defendant's cross motion and
dismissed the claim. Claimant now appeals.

      Defendant contends that claimant's motion for
"reconsideration" was actually a motion for reargument and the
appeal must therefore be dismissed as no appeal lies from the
denial of a motion for reargument. Initially, although the Court
of Claims had before it claimant's motion for "reconsideration,"
to the extent that it also denied claimant's motion for
permission to file a late claim and granted defendant's cross
motion to dismiss the claim as untimely, the order is appealable.
Furthermore, inasmuch as the court addressed the merits of
claimant's motion for summary judgment, the court, in our view,
essentially granted reargument and adhered to its prior decision
(see Adderley v State of New York, 35 AD3d 1043, 1043 [2006]).
Consequently, the entire order is appealable.

      On his motion for reargument, claimant bore the burden of
demonstrating that the Court of Claims "overlooked or
misapprehended the relevant facts, or misapplied any controlling
principle of law" (Foley v Roche, 68 AD2d 558, 567 [1979]; see


     1
        In his reply, claimant included another claim that was
essentially the same as the first.
                              -3-                520731

Adderley v State of New York, 35 AD3d at 1043).2 Our review of
the papers accompanying claimant's motion reveals that he failed
to make this showing. Consequently, the Court of Claims did not
err in adhering to its prior decision denying summary judgment.

      The order also granted defendant's cross motion and
dismissed the claim as untimely. In Davis v State of New York
(89 AD3d 1287, 1287 [2011]), this Court determined that a claim
for wrongful confinement accrues upon a claimant's release from
the special housing unit (see Conner v State of New York, 268
AD2d 706, 707 [2000]). The premise underlying this rule is that
the "[d]amages arising from wrongful confinement . . . are
reasonably ascertainable upon a claimant's release from
confinement" (Davis v State of New York, 89 AD3d at 1287).
Claimant urges us to redefine the rule, contending that the
damages are not reasonably ascertainable until the disciplinary
determination is administratively reversed, which in this case
occurred on July 22, 2013. We decline claimant's request and
adhere to the rule set forth in Davis, for the nature of the
damages incurred are definable upon release from the special
housing unit. Moreover, claimant has not stated a due process
claim under 42 USC § 1983 (compare Edwards v Balisok, 520 US 641
[1997]). Here, claimant did not file either the claim or the
notice of intention to file a claim until November 2013 and
December 2013, respectively, which was well beyond the 90-day
statutory period (see Court of Claims Act § 10 [3-b]; Butler v
State of New York, 126 AD3d 1247 [2015]; Johnson v State of New
York, 95 AD3d 1455, 1456 [2012]; Davis v State of New York, 89
AD3d at 1287-1288; Lee v State of New York, 124 AD2d 312, 312
[1986]).3 In view of this, the Court of Claims properly


    2
        We note that, inasmuch as the motion failed to allege new
facts or facts that were previously unknown, it is properly
characterized as a motion for reargument, rather than one for
renewal (see Suarez v State of New York, 193 AD2d 1037, 1037-1038
[1993]).
    3
        Contrary to claimant's contention, we do not find that
defendant waived the issue of timeliness given that it was
specifically raised as an affirmative defense in the answer in
                              -4-                  520731

dismissed the claim as untimely.

      The order appealed from also denied claimant permission to
file a late claim pursuant to Court of Claims Act § 10 (6). That
statute provides that permission to file a late claim may be
granted if a motion is made before the expiration of the statute
of limitations applicable to an action against a private citizen
(see Court of Claims Act § 10 [6]). Here, the Court of Claims
treated claimant's reply served in September 2014 as a motion for
permission to file a late claim and it was made well after the
expiration of the one-year statute of limitations governing the
intentional tort of unlawful imprisonment (see CPLR 215 [3];
Burks v State of New York, 119 AD3d 1302, 1303 [2014]).
Accordingly, we find no error in the court's denial of permission
to file a late claim.

     Peters, P.J., McCarthy and Egan Jr., JJ., concur.



     ORDERED that the order is affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court




compliance with Court of Claims Act § 11 (c).
