New York State Court of Claims

New York State Court of Claims

CARATHERS v. THE STATE OF NEW YORK, #2006-030-578, Claim No. 109001, Motion No. M-71982


Claimant’s motion to reargue previous Decision and Order granting partial summary judgment, and denying application for late claim relief, denied. In prior Decision and Order, partial summary judgment dismissing causes of action alleging failure to provide adequate and timely medical care had been granted based upon, in part, failure to establish standard of care or causation through an expert, and prayer for late claim relief as to those causes of action denied. Reargument denied because Court did not overlook or misapprehend the relevant facts or misapply any controlling principle of law.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant’s attorney:
Defendant’s attorney:
Third-party defendant’s attorney:

Signature date:
October 19, 2006
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read and considered on Claimant’s motion to reargue a prior

Decision and Order of this Court denying him late claim relief:

1,2 Notice of Motion; Affirmation of William J. Rold, Attorney for Claimant and attachment

  1. Affirmation in Opposition by John M. Healey, Assistant Attorney General
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 §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). 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.

October 19, 2006
White Plains, New York

Judge of the Court of Claims