New York State Court of Claims

New York State Court of Claims

BENJAMIN v. THE STATE OF NEW YORK, #2004-030-577, Claim No. 108834, Motion No. M-68791


Synopsis



Case Information

UID:
2004-030-577
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):
108834
Motion number(s):
M-68791
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 8, 2004
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers numbered 1 to 5 were read and considered on Claimant's motion


for "reconsideration" of two prior motions numbered M-68050 and M-68109 decided together:

  1. Affirmation for Reconsideration of Decision and Order Claim No. 108834, Motion # M-68050 and M-68109 (sic) by David Benjamin, Claimant, and attached papers
  1. Affirmation in Opposition by Mary B. Kavaney, Assistant Attorney General and attached exhibit
  1. Affirmation in Opposition by David Benjamin
4-5 Filed papers: Claim, Benjamin v State of New York, Claim No. 108834, Motion Nos. M-68050 and M-68109, unreported decision (filed July 6, 2004, Scuccimarra, J.)

After carefully reviewing 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 and order referred to dismissed Claim Number 108834 on jurisdictional grounds, and denied Claimant's application for permission to serve and file a late claim. The underlying claim alleges that Defendant's agents assaulted him while he was incarcerated at Green Haven Correctional Facility. An additional cause of action alleging medical malpractice was also raised in the Claim.

"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. 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).

On the present application, Claimant has attached three pages from his ambulatory health record concerning orthopedic consultations dated May 1, 2002, June 6, 2002 and August 27, 2002, that refer to some type of rotator cuff injury. His first affirmation - to which these sheets are attached - indicates that he had been receiving ongoing treatment and that on "June 6, 2002 it became final, upon reviewing the surgeon's operative note, the no further treatment was available . . . " Claim Number 108834 was filed on January 27, 2004, which he then indicates was within a "two year statute of limitations". As noted in the Court's prior decision, however, no notice of intention was ever served with respect to this claim, thus the ninety (90) day period of limitations was not tolled.

If the submission is intended to augment his prior late claim application in connection with the same facts, again, the Court denied the application on procedural and substantive grounds not cured by the addition of the medical records submitted.

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 do not present any rationale for the failure to present additional 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-68791 is in all respects denied.

October 8, 2004
White Plains, New York

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