New York State Court of Claims

New York State Court of Claims

BENJAMIN v. THE STATE OF NEW YORK, #2004-030-576, Claim No. NONE, Motion No. M-68790


Synopsis



Case Information

UID:
2004-030-576
Claimant(s):
DAVID BENJAMIN
Claimant short name:
BENJAMIN
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
NONE
Motion number(s):
M-68790
Cross-motion number(s):

Judge:
THOMAS H. SCUCCIMARRA
Claimant's attorney:
DAVID BENJAMIN, PRO SE
Defendant's attorney:
HON. ELIOT SPITZER, NEW YORK STATE ATTORNEY GENERALBY: MARY B. KAVANEY, ASSISTANT ATTORNEY GENERAL
Third-party defendant's attorney:

Signature date:
October 14, 2004
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers, numbered 1 to 4 were read and considered on Claimant's motion


for "reconsideration" of a prior motion:

  1. Affirmation for Requesting of Reconsideration of Decision and Order denying application for late claim relief [M-68367] by David Benjamin, Claimant
  1. Notice of Motion (sic) by Mary B. Kavaney, Assistant Attorney General and attached exhibits
  1. Affirmation in Opposition to Notice of Motion of August 5, 2004 (sic) by David Benjamin, Claimant
  1. Filed Papers: Benjamin v State of New York, Claim No. NONE, Motion No. M-68367 unreported decision, (Scuccimarra, J., July 6, 2004) and underlying papersAfter carefully considering the papers submitted and the applicable law the motion is disposed of as follows:
Since there is no motion for "reconsideration," the Court has treated Claimant's present application as one to either reargue or renew the prior motion for permission to serve and file a late claim. See Civil Practice Law and Rules §2221.

The original decision denying Claimant's application to serve and file a late claim contained three proposed claims, all apparently stemming from an inmate assault and medical treatment claimant received. Claimant's handwritten affirmation in support of his present motion to "reconsider" that denial - barely legible - asks that any legal deficiencies or lack of clarity in his prior submission be excused, and reiterates the underlying facts he expressed in the papers submitted on the prior motion. The second handwritten affirmation he submits on the present motion - again, largely illegible - mentions problems with getting to the law library and/or using the mail facilities.

"A motion for reargument, addressed to the discretion of the court, 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 (1st Dept 1979); See §2221(d)(2) Civil Practice Law and Rules. Additionally, such a motion should be brought within thirty (30) days after service of a copy of the order with notice of entry, or in any event prior to the entry of any judgment by the appellate court to which an appeal has been taken. Civil Practice Law and Rules §2221(d)(3); see Bray v Gluck, 235 AD2d 72 (3d Dept 1997), lv dismissed, 91 NY2d 1002 (1998).

A renewal motion asks the Court to consider new facts not previously offered that would change the earlier determination, or a change in the law that would change the prior determination. Civil Practice Law and Rules §2221(e). With respect to new facts, however, the motion should contain "reasonable justification for the failure to present such facts on the prior motion." Civil Practice Law and Rules §2221(e)(3).

The papers submitted do not establish that the Court misapplied any controlling principle of law; therefore the motion for reargument is denied. Similarly, the papers submitted - including as they do additional facts not included on the prior motion - do not present any rationale for the failure to present such information earlier, nor would such information have changed the Court's decision in any event. Treated as a motion to renew the application is also denied.

Accordingly, Claimant's motion number M-68790 is in all respects denied.

October 14, 2004
White Plains, New York

HON. THOMAS H. SCUCCIMARRA
Judge of the Court of Claims