New York State Court of Claims

New York State Court of Claims

SCOTT v. THE STATE OF NEW YORK, #2006-030-538, , Motion No. M-71022


Synopsis



Case Information

UID:
2006-030-538
Claimant(s):
ALLEN ROGERS SCOTT
Claimant short name:
SCOTT
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):

Motion number(s):
M-71022
Cross-motion number(s):

Judge:
THOMAS H. SCUCCIMARRA
Claimant’s attorney:
ALLEN ROGERS SCOTT, PRO SE
Defendant’s attorney:
HON. ELIOT SPITZER, NEW YORK STATE ATTORNEY GENERAL
BY: JEANE L. STRICKLAND SMITH, ASSISTANT ATTORNEY GENERAL
Third-party defendant’s attorney:

Signature date:
May 4, 2006
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers numbered 1 to 4 were read and considered on Claimant’s “motion


to correct pleading”:

  1. Motion to Correct Pleading by Allen Rogers Scott, Claimant and attachments
  1. Affirmation in Opposition to Motion to Reargue by Jeane L. Strickland Smith, Assistant Attorney General and attachments
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, 2005.

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 Correct Pleading].

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 claim.

“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.

May 4, 2006
White Plains, New York

HON. THOMAS H. SCUCCIMARRA
Judge of the Court of Claims