New York State Court of Claims

New York State Court of Claims

WORLEY v. STATE OF NEW YORK, #2001-018-068, Claim No. 101433, Motion No. M-62268


Synopsis



Case Information

UID:
2001-018-068
Claimant(s):
PHIL WORLEY
Claimant short name:
WORLEY
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
101433
Motion number(s):
M-62268
Cross-motion number(s):

Judge:
DIANE L. FITZPATRICK
Claimant's attorney:
PHIL WORLEYPro Se
Defendant's attorney:
ELIOT SPITZER
Attorney General of the State of New York
By: JOEL L. MARMELSTEIN, ESQUIRE Assistant Attorney General
Third-party defendant's attorney:

Signature date:
March 1, 2001
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant brings this motion to reargue/renew[1] the issues raised by a prior motion he


brought seeking dismissal of defendant's affirmative defenses. The Court has considered the


following documents in determining this motion:

Notice of Motion........................................................................1


Affidavit of Phil Worley in support with all exhibits attached

thereto.....................................................................................2


Affirmation of Joel L. Marmelstein, Esquire

Assistant Attorney General in opposition...............................3


Filed Documents:


Verified Claim.............................................................................4


Verified Answer...........................................................................5


Decision and Order filed July 25, 2000,

Motion No. M-61459..............................................................6

Claimant brought a prior motion (Motion No. M-61459) seeking to strike

Defendant's three affirmative defenses. A decision was entered on that motion on July 25, 2000, denying the relief requested.[2] Claimant now seeks to have the Court revisit the issues raised by Motion Number M-61459, maintaining that based upon case law the Court incorrectly assessed that the accrual date for his medical malpractice cause of action could not have been the date set forth in the claim. Claimant further argues that the defendant never served a copy of its responding affirmation on him; depriving him of an opportunity to respond to it. As a result, Claimant also requests that the Court allow him time, and in fact assist him, in obtaining copies of his medical records to address the issue of the date of accrual of his medical malpractice cause of action.

Defendant, in response to the motion, admits that the affidavit of service for the affirmation in opposition to motion number M-61459 could not be located. Defendant provides that it would "readily consent to an Order granting [this] motion if it would logically produce a different result. Affirmant believes that it will not." (Affirmation in Opposition ¶2) Defendant goes on to state that additional medical records will not change the appropriateness of the second and third affirmative defenses in the Answer that the Court lacks jurisdiction over the claim due to the failure to serve a notice of intention or claim within 90 days of the accrual. Defendant maintains that the second and third affirmative defenses were intended solely for Claimant's negligence causes of action, and that based upon the allegations, the accrual date was the date of injury, September 2, 1998, more than 14 months prior to Claimant's service of a notice of intention in this matter.

The Court will address the portions of Claimant's motion for reargument and to renew separately in accordance with CPLR 2221(f).

Claimant's motion to reargue the prior motion must be DENIED. A motion to dismiss a defense should be granted where no defense is stated or the defense although adequately pled has no merit. (CPLR 3211(b)). Claimant did not make that showing. The case Claimant cites was a decision after a trial; this claim for medical malpractice and negligence involves factual issues relating to the accrual dates which cannot be resolved on the motion papers. Under these circumstances the defenses cannot be dismissed. (Shoucair v Read, 79 AD2d 1081)

A portion of the pending motion is also one to renew. Claimant states that the reason the facts in his medical records which he seeks to introduce by this motion were not presented at the time the court considered the prior motion is because he was not served with a copy of the defendant's affirmation in opposition to the prior motion. The Court will accept Claimant's reason for not submitting the medical information previously. However, the Court cannot accept his reason for failing to provide the records with his renewal motion. Claimant asserts that he was due to be released from the correctional facility in a few days and did not have time to make a discovery or FOIL (Freedom of Information Law) request for his own medical records. A discovery demand, or a FOIL request is unnecessary since he is entitled to copies of his own medical records. Furthermore, Claimant had sufficient time to make a FOIL request for a copy of the "Legal Mail Receipt Logbook," copies of which were included with the motion; therefore, he should have had sufficient time to obtain his medical records, or at least make the effort, before filing this motion.

Accordingly, the Court GRANTS Claimant's motion to renew, but based upon the submission presented adheres to its prior determination on motion number M-61459.



March 1, 2001
Syracuse, New York

HON. DIANE L. FITZPATRICK
Judge of the Court of Claims




[1]Claimant actually labeled the motion as one for reargument and reconsideration. However, Claimant argues that the Court incorrectly decided the prior motion, and he seeks to introduce new facts and documents for consideration, as a result a portion of the motion is actually to renew and will be treated as such. (CPLR 2221(d)(e)(f))
[2]Defendant withdrew its first affirmative defense at the time it responded to Claimant's first motion, motion number M-61459.