4-6 Filed Papers: Claim, Answer; Decision and Order, Harris v State of New
York, Claim No. 106085, Motion No. M-68415 (Scuccimarra, J., August 12,
After carefully considering the papers submitted and the applicable law the
motion is disposed of as follows:
George Harris, the Claimant herein, alleges in Claim Number 106085 that
Defendant's agents negligently failed to provide him with adequate mental health
screening and associated care while he was in the custody of the New York State
Department of Correctional Services (hereafter DOCS). In addition to general
denials, in its Answer the Defendant asserts nine defenses, including Claimant's
alleged culpable conduct, immunity for privileged discretionary determinations,
assumption of risk, failure to state a cause of action, lack of jurisdiction due
to lack of compliance with Court of Claims Act §11 requirements for the
descriptive contents of a claim, failure to exhaust administrative remedies,
lack of jurisdiction over any cause of action based upon alleged violations of
federal constitutional claims, and a failure to mitigate damages.
In a prior Decision and Order filed on August 12, 2004 this Court already
reviewed and decided a similar motion to strike defenses, noting, as remains
true today, that there has been little to no discovery on this claim, and that
Claimant had not shown how any defenses asserted lack merit or are otherwise
In the present motion, what Claimant is actually doing is asking to reargue
issues already decided. See Civil Practice Law and Rules §2221(a)
and (d). Accordingly, and however Claimant has entitled this motion, it shall be
treated as a motion for reargument and decided accordingly.
"[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 Civil Practice
Law and Rules §2221(d)(2). 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).
Treated as a motion to reargue the prior decision, the papers submitted do not
establish that the Court misapplied any controlling principle of law; therefore
the motion for reargument is denied.
Accordingly, Motion number M-69597 is in all respects denied.