| Johnson v State of New York |
| 2012 NY Slip Op 03688 [95 AD3d 1455] |
| May 10, 2012 |
| Appellate Division, Third Department |
| 2—James Johnson, Appellant, v State of New York,Respondent. |
—[*1] Eric T. Schneiderman, Attorney General, Albany (Kathleen M. Arnold of counsel), forrespondent.
McCarthy, J. Appeal from an order of the Court of Claims (Milano, J.), entered March 18,2010, which denied claimant's motion to renew.
Claimant, a prison inmate, was found guilty of violating certain prison disciplinary rules andwas confined in the special housing unit from September 17, 2007 to December 14, 2007. OnSeptember 18, 2008, claimant commenced an action seeking monetary damages for his allegedwrongful confinement. Defendant answered, raising timeliness as a defense, and claimant movedfor summary judgment or permission to file a late claim pursuant to Court of Claims Act §10 (6). Defendant opposed the motion and cross-moved to dismiss the claim as untimely. TheCourt of Claims denied claimant's motion and granted defendant's cross motion. Claimantthereafter moved to renew, and the Court of Claims denied this motion. Claimant now appeals.
We affirm. Claimant appeals only from the order denying his motion to renew. A motion torenew must be "based upon new facts not offered on the prior motion that would change the priordetermination or shall demonstrate that there has been a change in the law that would change theprior determination" (CPLR 2221 [e] [2]; see Marquis v Washington, 85 AD3d 1338, 1338 [2011]).Inasmuch as his claim was not brought under 42 USC § 1983, we reject claimant'scontention that the United State Supreme Court's decision in Haywood v Drown (556[*2]US 729 [2009]) constitutes a change in the law that wouldimpact the Court of Claims' prior determination here (see Upsher v Ramineni, 84 AD3d 653, 654 [2011], lvdenied 17 NY3d 710 [2011]). Further, a claim must be filed and served, or notice ofintention to file a claim must be served, within 90 days after the accrual of the action (seeCourt of Claims Act § 10). Contrary to claimant's contention, the Court of Claims relied ona body of law that has not changed in claimant's favor in finding that his wrongful confinementclaim accrued on the date he was released from the special housing unit (see Davis v State of New York, 89AD3d 1287, 1287 [2011]; Conner v State of New York, 268 AD2d 706, 707[2000]). Accordingly, we find no abuse of discretion by the Court of Claims in denyingclaimant's motion to renew and, therefore, the decision will not be disturbed (see 2 N. St. Corp. v Getty SaugertiesCorp., 68 AD3d 1392, 1397 [2009], lv denied 14 NY3d 706 [2010]). We haveconsidered claimant's remaining arguments and find them to be unavailing.
Peters, P.J., Lahtinen, Spain and Kavanagh, JJ., concur. Ordered that the order is affirmed,without costs.