New York State Court of Claims

New York State Court of Claims

BRONCATI v. THE STATE OF NEW YORK, #2001-010-024, Claim No. NONE, Motion No. M-62736


Synopsis


Claimant's motion for reargument/renewal is denied.

Case Information

UID:
2001-010-024
Claimant(s):
LUCRETIA BRONCATI AND LOUIS BRONCATI
Claimant short name:
BRONCATI
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-62736
Cross-motion number(s):

Judge:
Terry Jane Ruderman
Claimant's attorney:
KENT, HAZZARD, JAEGER, WILSON, FAY & CONROYBy: James C. Freeman, Esq.
Defendant's attorney:
HON. ELIOT SPITZER
Attorney General for the State of New YorkBy: Vincent Cascio, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
March 22, 2001
City:
White Plains
Comments:

Official citation:

Appellate results:
Affirmed - Second Dept., 11/5/01
See also (multicaptioned case)



Decision

The following papers numbered 1-3 were read and considered by the Court on claimants' motion for reargument/renewal:

Notice of Motion, Attorney's Supporting Affirmation and Exhibits........................1


Attorney's Opposing Affirmation.............................................................................2


Attorney's Reply Affirmation and Exhibits................................................................3

Claimants seek reargument/renewal of this Court's Decision and Order, file stamped October 3, 2000 (M-62150), which denied claimants' application for leave to file a late claim. The Court weighed the six factors set forth in Court of Claims Act §10(6) and denied claimants' application. The Court found, inter alia, that claimants failed to provide a reasonable excuse for the nearly two year delay in filing a late claim application and that such delay substantially prejudiced defendant because it was not afforded an opportunity to timely investigate the circumstances underlying the claim. Most significantly, claimants failed to establish the appearance of merit of their proposed claim. The Court noted in its Decision and Order (M-62150, p. 3):

Claimants did not submit a report, a witness statement, or a medical record establishing that defendant's alleged negligence was a proximate cause of the alleged accident (see, Pagano v New York State Thruway Auth., 235 AD2d 409 [claimants did not submit evidence that roadway was not designed or maintained in accordance with the applicable construction standards and thus failed to establish appearance of merit]; Sevillia v State of New York, 91 AD2d 792 [claimant did not establish merit where there was no accident report or a witness' statement]). Merely submitting a photograph of the alleged accident site does not establish the appearance of merit of the proposed claim (see, Matter of Gallagher v State of New York, 236 AD2d 400 [nine month delay caused State substantial prejudice and claimant did not establish appearance of merit merely by submitting a photograph of the accident site]). Additionally, claimants' unsupported self serving allegations are insufficient to establish the appearance of merit (see, Klingler v State of New York, 213 AD2d 378 [claimants' unsupported opinion does not suffice to establish merit of their claim]).


A reargument motion is not "a vehicle to permit the unsuccessful party to argue once again the very questions previously decided" (Foley v Roche, 68 AD2d 558, 567). To the extent that claimants' motion may be construed as a motion for reargument, claimants failed to establish that the Court overlooked or misapprehended the relevant facts or that the Court misapplied any controlling principle of law (see, Mangine v Keller, 182 AD2d 476; Foley v Roche, supra). Accordingly, to the extent that claimants' motion seeks reargument, the motion is DENIED.

To the extent that claimants' motion may be construed as one for renewal, claimants argue that the Court should consider a page of the State Building Code (Ex. V) which was "inadvertently" omitted due to law office error (Attorney's Supporting Affirmation, ¶ 13);[1] an Engineer's Affidavit (Ex. W); the Ambulance Report of Lucretia Broncati (Ex. X); the hospital records of Lucretia Broncati (Ex. 4); the maintenance contract between the State and the City of White Plains (Ex. 2); and the Engineer's Supplemental Affidavit (Ex. AA).

"An application for leave to renew must be based upon additional material facts which existed at the time the prior motion was made, but were not then known to the party seeking leave to renew, and, therefore, not made known to the court"(see, Mangine v Keller, supra at 477). By statutory amendment, it is mandated that a renewal application "shall contain reasonable justification for the failure to present such facts on the prior motion" (CPLR 2221(e)(3); see, Delvecchio v Bayside Chrysler Plymouth Jeep Eagle, 271 AD2d 636 [renewal motion properly denied where no reasonable excuse was proffered]; see also, Ulster Sav. Bank v Goldman, 183 Misc 2d 893 [discussion of statutory amendment]).

Claimants failed to provide reasonable justification for not presenting these exhibits on the initial late claim application (Kwang Bok Yi v Seong Ahn, ___AD2d___, 718 NYS2d 625 [movants failed to offer a reasonable excuse as to why the additional facts were not submitted on the original application]; Morrison v Rosenberg, ___AD2d___, 717 NYS2d 354 [law office failure is not a reasonable excuse when it is "mere neglect"]; Matter of Ryan v State of New York, 254 AD2d 423 [denial of renewal application was proper where there was no reason why engineer's affidavit was not submitted on initial late claim application]; Shapiro v State of New York, 259 AD2d 753 [claimants failed to provide a reason why engineer's affidavit was not presented on the original late claim application]; Ricco v DePeralta, 274 AD2d 384 [movant, in a personal injury claim arising out of a motor vehicle accident, failed to offer a valid explanation why affidavit of a co-passenger was not made available earlier]).

Accordingly, to the extent that claimant seeks renewal, the motion is DENIED.


March 22, 2001
White Plains, New York

HON. TERRY JANE RUDERMAN
Judge of the Court of Claims




[1].Mistakenly referred to as exhibit W in ¶ 17 of Attorney's Supporting Affirmation.