3,4 Filed papers: Scott v State of New York, Claim No. None, Motion No.
M-70102, Decision and Order (Scuccimarra, J., September 9, 2005), and underlying
papers; Scott v State of New York, Claim No. 100313; Motion No. M-60600
(McNamara, J., January 6, 2000).
After carefully considering the papers submitted and the applicable law the
motion is disposed of as follows:
In the present motion before the Court, Allen Rogers Scott appears to seek
reargument or renewal of a prior motion denying him permission to serve and file
a claim; permission required in conformance with the Decision and Order of Judge
McNamara filed January 6, 2000. When this Court decided Mr. Scott’s motion
for permission to serve and file a claim it reviewed the proposed claim,
evaluated the merits, and denied the application. The claim appeared to allege
that the State was responsible for the accident - although no comprehensible
description of the accident was set forth - and that as a result of the accident
Claimant’s wheel chair and eyeglasses were broken and he suffered bruising
to his eyes and hands, as well as further unspecified injuries to his head,
neck, arms, chest, stomach, knees, legs and spinal cord. He appeared to also
assert that the State was additionally responsible for delays in medical
treatment at some unspecified time causing him further unspecified harm. No
location for the accident was stated, a date of accrual for the accident could
be inferred from the papers, but no accrual date regarding lack of medical
treatment could be gleaned. The extent of claimant’s injuries was not
indicated. No affidavit of merit was attached.
The Court determined that Claimant had not established that his claim had any
merit, and did not further comply with the pleading requirements of Court of
Claims Act §11(b). The Decision and Order was file-stamped September 9,
Now Mr. Scott wishes the Court to “correct” that determination,
based upon his perception - among other things - that the Attorney General
should not have made any response to his motion; that the Attorney General
concealed a return receipt showing he had served the proposed claim by certified
mail; that treating the prior motion as one for late claim relief was
“deceitful”; that the Court and the Assistant Attorney General
“CONSPIRED together COLLABORATED JOINT COOPERATION TO DEFRAUD SWINDLE of
filing my claimant meritorious claim . . .” [Page 6, Motion to Correct
Pleading]; that the Court referred to medical malpractice “when there has
not been none as of yet . . . and claim again has reserved the right to obtain
the time and place of car accident and items of damage and injuries claimed to
have been sustained and the total sum claimed. And to make known this
information at a later date which is just and proper.” [Page 8, Motion to
Claimant has attached a copy of an Unusual Incident Report describing a motor
vehicle accident which occurred while traveling from Fishkill Correctional
Facility on February 14, 2005. According to the report, a privately owned car
was involved in an accident with a State vehicle. The report states: “. .
. The accident occurred at the intersection of Prospect St and Route 52 . . .
[The State vehicle] was struck behind the drivers side door by a Ford Escort . .
. driven by Louis Lopez. Inmates . . . Scott [and others] were transported to
St. Lukes Hospital . . . treated and released.” This report was not
attached to the original application for permission to serve and file a
“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).
A renewal motion asks the Court to consider new facts not previously offered
that would change the earlier determination, or a change in the law that would
change the prior determination. Civil Practice Law and Rules §2221(e).
With respect to new facts, however, the motion should contain “reasonable
justification for the failure to present such facts on the prior motion.”
Civil Practice Law and Rules §2221(e)(3) . “A motion for leave to
renew is not a second chance freely given to parties who have not exercised due
diligence in making their first factual presentation . . . (citations
omitted).” Elder v Elder, 21 AD3d 1055 (2d Dept 2005).
The motion for reargument is not timely, and is denied, therefore, on that
ground alone. More substantively, the papers submitted do not establish that the
Court misapplied any controlling principle of law including the elements
required to state a negligence or other cause of action; therefore the motion
for reargument is denied. Similarly, the papers submitted - including as they do
additional facts not included on the prior motion - do not present any rationale
for the failure to present such information earlier through the exercise of due
diligence, nor would such information have changed the Court’s decision in
any event. Accordingly, the motion to renew is also denied.
Claimant’s motion [M-71022] is in all respects denied.