New York State Court of Claims

New York State Court of Claims

LARRY v. THE STATE OF NEW YORK, #2004-015-399, Claim No. 107124, Motion No. M-67947


Synopsis


Court denied claimant's motion to reargue defendant's prior successful motion for summary judgment dismissing claim for dental malpractice.

Case Information

UID:
2004-015-399
Claimant(s):
MARK LARRY
Claimant short name:
LARRY
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
107124
Motion number(s):
M-67947
Cross-motion number(s):

Judge:
FRANCIS T. COLLINS
Claimant’s attorney:
Nishman & SavitskyBy: Robert Savitsky, Esquire
Defendant’s attorney:
Honorable Eliot Spitzer, Attorney General
By: Kathleen M. Resnick, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
April 20, 2004
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant's motion for an order pursuant to CPLR 2221 granting leave to reargue a prior successful motion for summary judgment dismissing the claim upon a decision and order of this Court dated December 1, 2003 is denied. The claim seeks to recover damages for dental malpractice committed on March 22, 2002 at Franklin Correctional Facility. Claimant has alleged on the instant motion that the Court misconstrued the body of law governing continuous treatment as a Statute of Limitations tolling device and improperly determined that service of a notice of intention severed the dentist/patient relationship thereby ending the continuous treatment tolling period (see, Toxey v State of New York, 279 AD2d 927, lv to appeal denied, 96 NY2d 711).

It is well settled that a motion to reargue is addressed to the sound discretion of the Court and requires the moving party to demonstrate that the Court overlooked or misapprehended matters of fact or misapplied existing law to the facts presented (see, CPLR, Rule 2221 [d][2]; Spa Realty Assocs. v Springs Assocs., 213 AD2d 781; Peak v Northway Travel Trailers, 260 AD2d 840). Such a motion does not serve as a vehicle to permit the unsuccessful party to argue once again the very questions previously decided (see, Foley v Roche, 68 AD2d 558, 567, leave denied 56 NY2d 507).

The Court is not persuaded by the motion papers that it misapprehended the facts or misapplied the law in arriving at its determination on the prior motion. Claimant's motion to reargue is therefore denied.


April 20, 2004
Saratoga Springs, New York

HON. FRANCIS T. COLLINS
Judge of the Court of Claims


The Court considered the following papers:
  1. Notice of motion dated January 15, 2004;
  2. Unsigned affirmation of Robert Savitsky dated January 16, 2004.
  3. Affirmation of Kathleen M. Resnick dated February 11, 2004;
  4. Reply affirmation of Robert W. Nishman dated March 2, 2004.