On September 20, 2006, the following papers were read on motion by Claimant for
reargument of Motion No. M-71177 denying permission to file a late claim:
Notice of Motion and Affidavit and Exhibits Annexed
Opposing Affidavit and Memorandum of Law
Filed Papers: Decision and Order in Motion No. M-71177
Upon the foregoing papers, this motion is denied.
This motion seeks, pursuant to CPLR 2221, to reargue as well as to renew an
earlier motion for permission to file a late claim, which I denied in a decision
and order in Motion No. M-71177 dated May 23, 2006 and filed on June 12, 2006.
I note that in the instant motion Claimant has modified the proposed claim to
include an ad damnum clause and a verification, although their absence
had no bearing upon my earlier decision. Those references were intended to
reflect a review of the earlier motion papers.
The motion to reargue is based upon Claimant’s perception that I
“did not seem to consider” Claimant’s sworn affidavit that in
the one-week period after the underlying incident Claimant had four
conversations with a New York State Inspector at the job site known to him only
as “Dave.” Since Claimant’s assertions in this regard are
purportedly unrefuted, Claimant argues that this provides timely notice of the
essential facts constituting the claim and the opportunity to investigate.
In that regard I have carefully reviewed the affidavit submitted by Claimant in
support of the original motion, and specifically where he avers:
5. In the one-week period following the July 31, 2005 incident, I had
approximately four conversations with a New York State employee or
representative who served as an inspector on the job for New York State. I only
know this individual’s name as “Dave”.
6. During that one week period following the incident, I informed Dave of how I
was hurt and was told by Dave that I should seek medical care and have my eye
looked at if it did not get better.
There is at least one inherent flaw in Claimant’s reliance upon these
purported conversations. As I stressed in the original decision, and as I
reiterate now, the proposed claim sounds in violation of the Labor Law and the
New York State Industrial Code §23-1.9(d) regarding the putative
contamination of the water at the washing station, but it pointedly does not
address the underlying incident where Claimant was caused to get rust and metal
debris in his eyes. In Claimant’s own words, he “informed Dave of
how I was hurt.” Nowhere does Claimant allege or aver that he informed
Dave of the “essential facts constituting the claim,” to wit, that
the water at the washing station was contaminated or that there was any sort of
problem with the washing station, and thus did not provide the
“opportunity to investigate the circumstances underlying the claim. In
other words, Claimant’s unrefuted sworn statement of these conversations
provides no notice whatsoever regarding the washing station or the water
supplied thereto. The notice to Dave is limited to information of “how
[Claimant] was hurt” and nothing more.
In sum, I do not believe that I have overlooked or misapprehended any matters
of fact in determining the prior motion. It also bears reiterating that the
affidavit of Michael Casacci, a state inspector at the site, specifically
refutes any allegations that he was given notice of Claimant’s eye injury,
and that representation is corroborated by the absence of any reference to
Claimant or this underlying incident in the Inspector’s Daily Report for
July 31, 2005.
That part of Claimant’s motion seeking to reargue the earlier motion is
denied. To the extent that the discussion above may be deemed to reflect
reargument of the original motion, I adhere to my original decision.
The motion to renew is based upon a July 13, 2006 report from Claimant’s
eye physician, Dr. Sandra Everett, which counsel characterizes as establishing
the meritoriousness of the proposed claim because of the injuries to his right
eye “with all loss of vision due to the use of non-sterile water used to
rinse his right eye out when he experienced a foreign body in both
Without wishing to seem unsympathetic to Claimant’s very serious eye and
vision problems, I find there is some circular reasoning which gives me pause.
As I noted on Page 2 in the original decision and order, Claimant averred in his
affidavit sworn to on February 28, 2006:
From what I have learned from my doctor, the water in the hand washing station
was polluted and contained bacteria which caused serious infections to both of
Yet, now in reviewing Dr. Everett’s letter dated July 13,
His eyes were rinsed out, per the patient, with non-sterile water
obtained from whatever water source was available, “i.e., creek or
pond” [emphasis supplied].
So, on the one hand the doctor purportedly was told by Claimant that the water
was non-sterile and came from a creek or pond. On the other hand, Claimant was
purportedly told by the doctor that the water in the hand washing station was
polluted and caused the infection to his eyes. Thus each relies upon the other
as the supposed source of the allegation that the water in the hand washing
station was contaminated.
More to the point, and in this respect Defendant’s arguments are more
compelling, this is not new information that was unavailable at the time of the
initial motion, and there is no explanation for the failure to have submitted it
in the first instance. A motion for leave to renew “shall be based upon
new facts not offered on the prior motion that would change the prior
determ-ination” (CPLR 2221[e]). Here Claimant does nothing more than
provide the report of Dr. Everett, merely indicating that it was received at
counsel’s office on July 20, 2006. No excuse or explanation is given for
the failure to have offered the same in support of the original motion or
explain why it was unavailable, particularly since Dr. Everett examined and
treated Claimant in November and December 2005. A motion for leave to renew is
not a second chance freely given to parties. There is no indication when a
request for the report was first made, and it appears that the request for such
report was not made until after my denial of the late claim application, and
that this “evidence” could have been discovered earlier
(cf. Pollock v Wilson, 26 AD3d 772). Accordingly, that part of
the instant motion seeking leave to renew pursuant to CPLR 2221[e], is