New York State Court of Claims

New York State Court of Claims

MC DOUGLE v. THE STATE OF NEW YORK, #2003-031-092, Claim Nos. 98658, 98659, Motion No. M-67020


Synopsis


Case Information

UID:
2003-031-092
Claimant(s):
CHARLES MC DOUGLE
Claimant short name:
MC DOUGLE
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
98658, 98659
Motion number(s):
M-67020
Cross-motion number(s):

Judge:
RENÉE FORGENSI MINARIK
Claimant's attorney:
CHARLES MC DOUGLE, PRO SE
Defendant's attorney:
HON. ELIOT SPITZER
New York State Attorney General
BY: THOMAS G. RAMSAY, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
November 18, 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 two previous motions, pursuant to CPLR § 2221:
1. Claimant's Notice of Motion, filed June 27, 2003;
2. Claimant's Affidavit, sworn to June 24, 2003;
3. Affirmation of Thomas G. Ramsay, Esq., dated July 17, 2003, with attached exhibit;
4. Decision and Order of the Honorable Edgar C. NeMoyer (Claim No. 98658), filed October 11, 2000;
5. Decision and Order of the Honorable Edgar C. NeMoyer (Claim No. 98659), filed October 11, 2000. This is Claimant's motion for permission to reargue two Decisions and Orders of the Honorable Edgar C. NeMoyer, both filed on October 11, 2000, and which dismissed the above identified claims as jurisdictionally defective due to Claimant's failure to serve either claim by certified mail, return receipt requested. In each of his underlying actions, Claimant alleged medical malpractice/negligence relating to treatment he received for an infected finger (Claim No. 98658) and a herniated disc (Claim No. 98659).

A motion to reargue, which is governed by CPLR § 2221 (d)(2), "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 his motion papers, Claimant has failed to indicate how the Court's previous ruling was in error. Although he alleges that each claim was served by certified mail, return receipt requested, he offers no evidence to support this contention. He merely alleges that Defendant intentionally misrepresented this fact to the Court in the previous motions.

Additionally, as Defendant correctly points out, Claimant waited almost three years after the motions were determined to file this motion to reargue. CPLR § 2221 (d)(3) requires such motions to be made within thirty (30) days after service of a copy of the order.

Based upon the foregoing it is:

ORDERED, that Claimant's motion is denied.

November 18, 2003
Rochester, New York

HON. RENÉE FORGENSI MINARIK
Judge of the Court of Claims