New York State Court of Claims

New York State Court of Claims

LAMAGE v. THE STATE OF NEW YORK, #2006-015-141, Claim No. 109527, Motion No. M-72247


Synopsis



Case Information

UID:
2006-015-141
Claimant(s):
EDWIN LAMAGE
Claimant short name:
LAMAGE
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
109527
Motion number(s):
M-72247
Cross-motion number(s):

Judge:
FRANCIS T. COLLINS
Claimant’s attorney:
Edwin Lamage, Pro Se
Defendant’s attorney:
Honorable Eliot Spitzer, Attorney General
By: Frederick H. McGown, III, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
December 14, 2006
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant's motion for an order pursuant to CPLR 2221 granting leave to reargue a prior motion which resulted in an order denying his motion for summary judgment on his first cause of action (negligent failure to protect) is denied. Claimant alleges in his first cause of action that the defendant was negligent in failing to protect him from the foreseeable likelihood of attack by another inmate. This Court denied his motion for summary judgment by order dated August 23, 2006 on the ground that the claimant failed to make a prima facie showing of entitlement to judgment as a matter of law (see, Winegrad v New York University Med. Ctr., 64 NY2d 851, 853).

It is well settled that a motion to reargue is addressed to the sound discretion of the Court and requires the moving party to demonstrate that the Court overlooked or misapprehended matters of fact or misapplied existing law to the facts presented (see, CPLR, Rule 2221 [d][2]; Spa Realty Assocs. v Springs Assocs., 213 AD2d 781; Peak v Northway Travel Trailers, 260 AD2d 840). Such a motion does not serve as a vehicle to permit the unsuccessful party to argue once again the very questions previously decided (see, Foley v Roche, 68 AD2d 558, 567, leave denied 56 NY2d 507).

The Court is not persuaded by the motion papers that it misapprehended the facts or misapplied the law in arriving at its determination on the prior motion. Claimant's motion to reargue is therefore denied.


December 14, 2006
Saratoga Springs, New York

HON. FRANCIS T. COLLINS
Judge of the Court of Claims


The Court considered the following papers:
  1. Notice of motion dated September 1, 2006;
  2. Affidavit of Edwin Lamage sworn to September 1, 2006;
  3. Affirmation of Frederick H. McGown, III, dated September 7, 2006;
  4. Reply of Edwin Lamage sworn to September 15, 2006.