4-6 Filed Papers: Claim, Answer, Decision and Order Carathers v State of New
York, Claim Number 109001, Motion Numbers M-71315; CM-71466 (Scuccimarra,
J., July 7, 2006) and underlying papers
Darrin Carathers alleges in Claim Number 109001 filed on March 5, 2004, and
served upon the Office of the Attorney General on or about March 3, 2004, that
Defendant’s agents at several New York State Department of Correctional
Services (DOCS) facilities were negligent, and failed to provide him with
adequate and timely medical care. More specifically, in the Claim, he asserts
what amount to three distinct incidents of negligence and/or medical
malpractice, and frames five different causes of action premised upon the
underlying incidents. First he asserts that on or about March 26, 2002, while
being transported to St. Agnes Hospital for a medical evaluation, transportation
officers failed to secure his wheelchair at the loading dock of the hospital,
and he fell off the dock sustaining injuries. Second, he asserts that
Defendant’s agents negligently delayed provision of a medically
necessarily leg brace prescribed in July 2002, causing him further injury and
pain. Finally, he asserts that when he arrived at Shawangunk Correctional
Facility at some unspecified time he was given the wrong size catheters, told to
rinse and re-use what were clearly “single-use” catheters, and,
consequently, contracted a urinary tract infection.
In the prior Decision and Order of this Court, partial summary judgment
dismissing portions of the claim was granted, and Claimant’s cross-motion
for late claim relief was denied. [See Decision and Order Carathers v
State of New York, Claim Number 109001, Motion Numbers M-71315; CM-71466
(Scuccimarra, J., July 7, 2006)]. The only cause of action remaining concerns
the Claimant’s alleged fall off the loading dock.
“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 Viola v City of New York, 13 AD3d 439 (2d Dept 2004), lv
denied, 5 NY3d 706 (2005); see also Civil Practice Law and Rules
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).
The motion herein appears to be timely.
Claimant asserts that the Court misconstrued the nature of the claim, in part,
by using the phrase “failure to provide appropriate catheters” to
describe the alleged failure by Defendant’s agents to provide new
catheters as opposed to requiring the Claimant to re-use single-use catheters.
Claimant asserts that the Court misapprehended the law as to how the standard of
care in a medical malpractice and/or a negligence cause of action is
established, in that the manufacturer’s inserts for the catheters provided
established the standard of care, or at least demonstrated that it was not
medical malpractice that occurred thus no physician’s affidavit attesting
to the standard of care was necessary.
As noted by the Assistant Attorney General, however, read in context the Court
clearly understood the nature of the claim when it used the phrase
“failure to provide appropriate catheters” to summarize the various
omissions alleged, and similarly impliedly found that a manufacturer’s
product insert does not establish the standard of care or causation without
more. Indeed, even in the abrogated case relied on by Claimant, Paul v
Boschenstein, 105 AD2d 248, 249 (2d Dept 1984), the Court noted therein that
a physician or other medical expert would be needed to establish causation.
More importantly, Spensieri v Lasky, 94 NY2d 231 (1999), wherein it was
reconfirmed that a medical expert’s testimony is required to establish the
standard of care, and that the Physicians’ Desk Reference [PDR] or
manufacturer’s literature alone would not suffice, more correctly states
the applicable standard. The Court did not and does not view the nature of the
claim as one concerning simple negligence, as argued by Claimant.
Accordingly, the papers submitted do not establish that the Court misapplied
any controlling principle of law. Therefore the motion for reargument [M-71982]
is in all respects denied.