New York State Court of Claims

New York State Court of Claims

BACIU v. THE STATE OF NEW YORK, #2000-016-048, Claim No. None, Motion No. M-61740


Synopsis


Motion to renew was denied in connection with earlier late claim motion that had been denied.

Case Information

UID:
2000-016-048
Claimant(s):
MARIA BACIU
Claimant short name:
BACIU
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
None
Motion number(s):
M-61740
Cross-motion number(s):

Judge:
Alan C. Marin
Claimant's attorney:
David Shakarchi, Esq.
Defendant's attorney:
Thomas M. Bona, P.C.By: Stephanie K. Cervoni, Esq.
Third-party defendant's attorney:

Signature date:
July 24, 2000
City:
New York
Comments:

Official citation:

Appellate results:
Affirmed 724 NYS2d 886
See also (multicaptioned case)



Decision

This is Maria Baciu's motion to renew pursuant to CPLR 2221(e) in connection with her earlier motion no. M. 60839 for permission to file a late claim, which was denied in an order filed March 17, 2000. In Baciu's proposed underlying claim, she alleges that she was injured when the car she was driving in Queens County was struck by a car owned and operated by defendant. In considering the earlier motion, it was found that Baciu had not satisfied the merit factor of the six factors to be considered on a late claim motion under §10.6 of the Court of Claims Act. In connection with that finding, it was noted that under the No-Fault law, a threshold showing of serious injury under §5102(d) of the Insurance Law must be made. In that regard, Baciu had submitted no evidence of her injuries, such as a doctor's affidavit or medical records.

On this motion to renew, Baciu now seeks to submit a "Physician's Affirmation" as to her injuries as well as her own affirmation stating, among other things, that she was unable to work for a period of time following the accident.

CPLR 2221(e) provides in relevant part that a motion to renew "shall be based upon new facts not offered on the prior motion . . . [and] shall contain reasonable justification for the failure to present such facts on the prior motion."

In this case, Baciu has offered no explanation for her failure to provide these facts in connection with her earlier motion.[1] Accordingly, she is not entitled to the relief sought in this motion. See, e.g., 1009 Second Avenue Associates v Benenson Capital Co., 2000 WL 715989 (1st Dept May 30, 2000) ("Defendants' motion to renew was properly denied absent a reasonable excuse for their not having included the new evidence . . . in the original motion"); Delvecchio v Bayside Chrysler Plymouth Jeep Eagle, Inc., 706 NYS2d 724, 726 (2d Dept 2000) (motion to renew properly denied where "[t]he additional information submitted upon renewal was known to the defendants when the original motion and cross motion were made, and they did not proffer a reasonable excuse for their failure to present those facts at that time . . .").

Accordingly, having reviewed the parties' submissions[2], IT IS ORDERED that claimant's motion to renew is denied.


July 24, 2000
New York, New York

HON. ALAN C. MARIN
Judge of the Court of Claims



  1. [1]The matters asserted in the physician's affirmation and Baciu's affidavit were known at the time of her late claim motion; the surgery referred to by her doctor was performed before such motion, and her alleged absence from work commenced more than four months before the late claim motion. In addition, in its opposition papers to claimant's late claim motion, defendant asserted that claimant had failed to present sufficient evidence of injury; claimant submitted no reply papers.
  2. [2]The following were reviewed: Claimant's notice of motion with affirmation in support and exhibits A-D, including the affirmation of Enrique Ergas, MD and the affidavit of Maria Baciu; and defendant's affidavit in opposition.