New York State Court of Claims

New York State Court of Claims

YOUNG-MAXWELL v. THE STATE OF NEW YORK, #2005-028-556, Claim No. NONE, Motion No. M-69530


Synopsis


Movant's motion for leave to reargue is denied .

Case Information

UID:
2005-028-556
Claimant(s):
MARTHA YOUNG-MAXWELL
Claimant short name:
YOUNG-MAXWELL
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-69530
Cross-motion number(s):

Judge:
RICHARD E. SISE
Claimant's attorney:
SPIEGEL & BARBATO, LLPBY: Lucille M. Barbato, Esq.
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERAL
BY: Joel L. Marmelstein, Esq.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
August 2, 2005
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers were read on Movant's application pursuant to CPLR 2221 for leave to reargue the Court's prior decision denying Movant's application pursuant to Court of
Claims Act § 10(6) for permission to file a late claim:

1) Notice of Motion and Supporting Affirmation of Lucille M. Barbato, Esq.
(Barbato Affirmation) with annexed Exhibits A-C filed December 27, 2004.

2) Affirmation in Opposition of Assistant Attorney General Joel L. Marmelstein
(Marmelstein Affirmation) and Affidavit of Michael Maher (Maher Affidavit) filed January 24, 2005.


By decision and Order filed November 9, 2004 the Court denied Movant Martha Young-Maxwell's application for permission to file a late Claim against the Defendant following a trip and fall accident on April 27, 2003 on an uneven and cracked sidewalk/walkway within Mohawk Correctional Facility. Movant now seeks leave to reargue the Court's denial of her application pursuant to Court of Claims Act § 10(6). The Defendant has opposed the application.

Movant's principal argument is that the prior submission was sufficient to warrant the exercise of the Court's discretion (Barbato Affirmation ¶ 6) and that any further investigation of the accident by Movant was hampered by the exclusionary control by the State of the correctional facility (Barbato Affirmation ¶ 7) - an allegation unsupported by any facts and specifically refuted by Defendant (Maher Affidavit ¶ 3).

"A motion for reargument . . . 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" (Foley v Roche, 68 AD2d 558, 567; see CPLR 2221 [d]). Such motions are not perfunctorily granted and they are not intended to "afford an unsuccessful party successive opportunities to reargue issues previously [considered and] decided" (Matter of Mayer v National Arts Club, 192 AD2d 863, 865, lv denied 88 NY2d 802; see Foley v Roche, supra at 567).

Here, upon a thorough review of Movant's motion papers and the arguments presented in them, the Court finds no reason to revisit the prior decision. In short, there is no indication that this Court ignored prevailing law or failed to address an issue raised by Movant. Rather, Movant has ignored the failure to plead a negligence cause of action as noted by the Court in its earlier decision.

Accordingly, Claimant's motion for leave to reargue is denied.



August 2, 2005
Albany, New York

HON. RICHARD E. SISE
Judge of the Court of Claims