New York State Court of Claims

New York State Court of Claims

LOPER v. STATE OF NEW YORK, #2006-015-142, Claim No. 111978, Motion No. M-72341


Synopsis


Motion to reargue prior motion for late claim relief was denied. Proposed claim for medical malpractice failed to identify the acts or omissions which formed the basis of the proposed claim and no expert proof was submitted in support of the motion.

Case Information

UID:
2006-015-142
Claimant(s):
TAMAR LOPER
Claimant short name:
LOPER
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
111978
Motion number(s):
M-72341
Cross-motion number(s):

Judge:
FRANCIS T. COLLINS
Claimant’s attorney:
Tamar Loper, Pro Se
Defendant’s attorney:
Honorable Eliot Spitzer, Attorney General
By: Michele M. Walls, Esquire
Assistant Attorney GeneralNo Appearance
Third-party defendant’s attorney:

Signature date:
December 15, 2006
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

Movant seeks an order pursuant to CPLR 2221 granting leave to reargue a prior motion which resulted in an order denying a motion for late claim relief. For the reasons which follow, the motion is denied. This claim arises out of the alleged medical negligence of the defendant in failing to properly diagnose and treat various physical ailments and conditions. As noted in this Court's prior order (see Decision and Order Loper v State of New York, Ct Cl, August 22, 2006 [Claim Number 111978, Motion Numbers M-71668; CM-71815, UID # 2006-015-115], Collins, J.[1]
Despite its length, the proposed claim fails to reasonably identify the specific acts or omissions which form the basis of this claim for negligent denial of appropriate medical treatment. Furthermore, it is well established that a motion for late claim relief involving a claim for dental or medical malpractice must be accompanied by expert medical evidence demonstrating that 'the diagnosis and treatment rendered to claimant by state personnel departed from accepted medical practices and standards' (quoting, Matter of Perez v State of New York, 293 AD2d 918, 919).

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).

Movant has failed to establish that this Court misapprehended the facts or misapplied the law in arriving at its determination on the prior motion. The motion for leave to reargue is therefore denied.



December 15, 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 11, 2006;
  2. "Affidavit" of Tamar Loper dated September 11, 2006, verified September 14, 2006 with exhibits.

[1].Unreported decisions from the Court of Claims are available via the internet at http://www.nyscourtofclaims.state.ny.us./decision.htm.