New York State Court of Claims

New York State Court of Claims

GRAHAM v. STATE OF NEW YORK, #2006-013-070, , Motion No. M-72021


Claimant’s motion to reargue motion for permission to file late claim is denied.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):

Motion number(s):
Cross-motion number(s):

Claimant’s attorney:
Defendant’s attorney:
Third-party defendant’s attorney:

Signature date:
November 6, 2006

Official citation:

Appellate results:

See also (multicaptioned case)


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 eyes.”

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 my eyes.

Yet, now in reviewing Dr. Everett’s letter dated July 13, 2006,[1] she states:

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][3]). 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][3], is denied.

November 6, 2006
Rochester, New York

Judge of the Court of Claims

  1. [1]Defendant’s arguments that this letter from Dr. Everett should not be considered or is of questionable support because it is not in affidavit form is rejected. For purposes of this motion, I will consider it as if it were a sworn statement.