New York State Court of Claims

New York State Court of Claims

WEINSTEIN v. THE STATE OF NEW YORK, #2001-016-008, Claim No. None, Motion No. M-62745


Late claim motion re automobile accident had been denied on grounds, inter alia, that claimant had failed to make a showing of serious injury. This motion for reargument/renewal was denied.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Alan C. Marin
Claimant's attorney:
Gravante, Gravante & LoobyBy: Robert E. Polistena, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Susan J. Pogoda, AAG
Third-party defendant's attorney:

Signature date:
February 13, 2001
New York

Official citation:

Appellate results:

See also (multicaptioned case)


In a September 26, 2000 Decision and Order, Brian Weinstein's motion for permission to file a late claim pursuant to §10.6 of the Court of Claims Act ("the Act") was denied. This is claimant's motion to renew and reargue pursuant to CPLR 2221. In the earlier Decision and Order, it was found, among other things, that claimant had not satisfied the merit factor of the six factors to be considered under §10.6 of Act, having failed to make a threshold showing of serious injury under §5102(d) of the Insurance Law. In that regard, he had failed to submit his own affidavit or a physician's affidavit as to his injuries. Aside from his attorney's statement that he had suffered "cuts to the head and face and injuries to the left eye requiring surgery," the only independent evidence of his injuries was a one-page billing document referring to a "laceration of eyelid," "open wound of nose" and "abnormal coagulation profile" and a police report listing his injuries as "cuts to face."

Claimant now seeks to submit his own affidavit and a physician's affidavit as to his injuries. 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, claimant's only explanation for his failure to provide these facts in connection with his earlier motion is that his attorneys "[were] only recently able to obtain the affidavit of the surgeon . . ." who is "very difficult to reach." The physician's affidavit states that he first saw claimant on March 6, 2000 and the following day, performed surgery, after which he continued to treat claimant. No particulars are provided as to why the surgeon could not have submitted his affidavit with claimant's earlier motion, which was made on or about June 24, 2000. For instance, it is not alleged that the surgeon was out of town or otherwise unavailable for the almost four-month period between the surgery and the making of the late claim motion. In short, claimant has failed to provide a reasonable explanation and is not entitled to the relief sought in this motion. See, e.g., 1009 Second Avenue Associates v Benenson Capital Co., 272 AD2d 254, 710 NYS2d 241 (1st Dept 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., 271 AD2d 636, 638, 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 . . .").

Even were the physician's affidavit taken into account, the injuries set out in his affidavit, as discomforting and trying they may be, do not constitute a serious injury within the meaning of §5102(d) of the Insurance Law so as to take it out of the compensation scheme envisioned by Article 51 of the Insurance Law ("No-Fault"). See, e.g., the Introductory Statement to PJI 2:75. For example, no "permanent loss of use of a body organ, member, function or system" has been alleged, nor has "permanent consequential limitation of use of a body organ or member;" and there does not appear to be evidence of "significant disfigurement" in terms of claimant's scarring. See, e.g., Spevak v Spevak, 213 AD2d 622, 624 NYS2d 232 (2d Dept 1995).

To the extent that claimant deems this motion one to reargue, he has not argued that the Court overlooked or misapprehended any matters of fact or law.

For the foregoing reasons, having reviewed the parties' submissions,[1] IT IS ORDERED that motion no. M-62745 is denied.

February 13, 2001
New York, New York

Judge of the Court of Claims

[1]The following were reviewed: claimant's notice of motion with affirmation in support, claimant's affidavit, the affidavit of James P. Milite, M.D. and Exhibits 1-6; defendant's affirmation in opposition; and claimant's reply affirmation.