New York State Court of Claims

New York State Court of Claims

LEE v. THE STATE OF NEW YORK, #2003-031-086, Claim No. 102894, Motion No. M-66802


Synopsis


Claimant's application for permission to reargue is denied.

Case Information

UID:
2003-031-086
Claimant(s):
EDDIE JAMES LEE, SR.
Claimant short name:
LEE
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
102894
Motion number(s):
M-66802
Cross-motion number(s):

Judge:
RENÉE FORGENSI MINARIK
Claimant's attorney:
EDDIE JAMES LEE, SR., PRO SE
Defendant's attorney:
HON. ELIOT SPITZER
New York State Attorney General
BY: HEATHER R. RUBINSTEIN, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
November 12, 2003
City:
Rochester
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers, numbered 1 to 5, were read on motion by Claimant for an order granting reargument of a previous motion, pursuant to CPLR 2221:
1. Claimant's Notice of Motion, filed May 12, 2003;
2. Claimant's Affidavit, sworn to May 7, 2003;
3. Correspondence from Heather R. Rubinstein, Esq., dated June 17, 2003;
4. Correspondence from Claimant, dated July 24, 2003;
5. Decision and Order of the Honorable Donald J. Corbett, Jr., filed April 14, 2003.This is Claimant's motion for "reconsideration" of the April 14, 2003 Decision and Order of the Honorable Donald J. Corbett, Jr. which dismissed the claim as jurisdictionally defective due to Claimant's failure to serve the claim by certified mail, return receipt requested. In his underlying action, Claimant alleges medical malpractice/negligence relating to treatment he received at the Walsh Medical Center in Rome, New York on June 22, 2000.

Although Claimant entitled this motion as one to "reconsider," it is clear that his request is actually a motion to reargue, which is governed by CPLR 2221 (d) (2). However, CPLR 2221
"is designed to afford a party an opportunity to establish that the court overlooked or misapprehended the relevant facts, or misapplied any controlling principle of law. Its purpose is not to serve as a vehicle to permit the unsuccessful party to argue once again the very questions previously decided . . . (citations omitted). Nor does reargument serve to provide a party an opportunity to advance arguments different from those tendered on the original application" (Foley v Roche, 68 AD2d 558, 567 - 568).
In this motion, Claimant has failed to indicate how the Court's previous ruling was in error. In fact, Claimant concedes, as he did on the previous motion, that his claim was served upon Defendant by regular mail and not certified mail, return receipt requested. The fact that Claimant served his notice of intention to file a claim by certified mail, return receipt requested does not cure the jurisdictionally defective service of the claim.

Based upon the foregoing, it is:

ORDERED, that Claimant's motion is denied.

November 12, 2003
Rochester, New York

HON. RENÉE FORGENSI MINARIK
Judge of the Court of Claims