New York State Court of Claims

New York State Court of Claims

BARAL v. THE STATE OF NEW YORK, #2002-028-028, Claim No. 104021, Motion No. M-64924


Synopsis


Movant failed to offer reasonable excuse for failure to submit medicla records on initial application. Leave to renew denied.


Case Information

UID:
2002-028-028
Claimant(s):
DAMMAR BARAL
Claimant short name:
BARAL
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
104021
Motion number(s):
M-64924
Cross-motion number(s):

Judge:
RICHARD E. SISE
Claimant's attorney:
DAMMAR BARAL, pro se
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERAL
BY: Michele M. Walls, Esq. Assistant Attorney General
Third-party defendant's attorney:

Signature date:
May 3, 2002
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

The following papers were read on Claimant's application pursuant to CPLR § 2221(e) to seek leave to renew prior motions (M-64313; Cross-Motion No.: CM-64381 and
Cross-Motion No.: CM-64464) which resulted in an order dated February 1, 2002 (filed February 8, 2002) which, inter alia, dismissed the Claim and denied permission to late file a claim:

  1. Notice of Motion and Supporting Affidavit of Dammar Baral, filed March 26, 2002 with annexed Exhibits A-D (Baral Affidavit);
  1. Affirmation in Opposition of AAG Michele M. Walls filed April 5, 2002 (Walls Affirmation).

Filed Papers: Verified Claim, filed March 26, 2001; Verified Answer filed May 11, 2001.


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, Spa Realty Associates v Springs Associates, 213 AD2d 781; Mangine v Keller, 182 AD2d 476; see also CPLR §2221[e]). The application must also "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]; Matter of Barnes v State of New York, 159 AD2d 753, 753-754, lv dismissed 76 NY2d 935).

Claimant failed to provide reasonable justification for not presenting these exhibits on the initial late claim application (Kwang Bok Yi v Seong Ahn, 278 AD2d 372 [movants failed to offer a reasonable excuse as to why the additional facts were not submitted on the original application]). Movant's purported reliance on the Clerk's letter (Baral Affidavit, Exhibit D) is disingenuous, for if, as he suggests, he read that letter as prohibiting the submission of the medical records until trial, the initial application for permission to late file the claim would have contained no medical records as opposed to some. Here, Movant made a decision to submit only a portion of his medical records on the initial application. Movant's statements, inter alia, that he is a layman, indigent[1] and has time constraints (Baral Affidavit, ¶11) are similarly unavailing as a reasonable excuse (see, Innis v State of New York, 92 AD2d 606, affd 60 NY2d 654 [ignorance of law]; Musto v State of New York, 156 AD2d 962 [movant's inability to secure counsel was not a sufficient excuse for delay]; Hall v State of New York, 85 AD2d 835 [status as inmate] ).

Furthermore, Movant's statement that the Court's decision requires the allegedly negligent medical staff to provide the affidavit of merit (Baral Affidavit, ¶ 9) simply misapprehends the Court's decision with regard to establishing the merit of the proposed claim and the requirements for same. Even if the Court were to exercise its discretion and grant leave to renew, movant's continued failure to provide expert medical evidence to demonstrate that the diagnosis and treatment rendered to him by State personnel departed from accepted medical practices would dictate denial of his late claim application (Perez v State of New York, AD2d , 2002 WL 722672, 2002 N.Y. Slip Op. 03200 [3rd Dept, April 25, 2002]).

Accordingly, and for the reasons set forth above, Movant's motion for leave to renew is DENIED.


May 3, 2002
Albany, New York

HON. RICHARD E. SISE
Judge of the Court of Claims




[1] The Court notes that Movant's earlier application for reduction of the filing fee pursuant to CPLR §1101(f) was denied by decision and order filed April 6, 2001.