New York State Court of Claims

New York State Court of Claims

MCDONALD v. THE STATE OF NEW YORK, #2006-032-020, Claim No. N/A, Motion No. M-70887


Synopsis



Case Information

UID:
2006-032-020
Claimant(s):
PETER MCDONALD
Claimant short name:
MCDONALD
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
N/A
Motion number(s):
M-70887
Cross-motion number(s):

Judge:
JUDITH A. HARD
Claimant's attorney:
Peter McDonald, Pro Se
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney GeneralBy: Paul F. Cagino, Assistant Attorney General, Of Counsel
Third-party defendant's attorney:

Signature date:
March 20, 2006
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant moves this Court for leave to renew and reargue the Court's Decision and Order filed September 27, 2005, denying claimant permission to file a late claim. Defendant opposes this relief.

In February 2004, claimant filed claim 108888 alleging medical malpractice. The claim arises as a result of shoulder surgery performed on claimant on February 21, 2003, while he was incarcerated at Altona Correctional Facility. Claimant then sought permission to file a late claim for allegations arising from the same facts. Defendant opposed the motion but did not move to dismiss claim 108888. The Court denied permission to file a late claim because, inter alia, the claim did not have the appearance of merit.

Claimant's submissions in support of his motion are quite confusing. He argues that late claim relief should be granted because he was mistaken in his submissions on the prior motion, when he stated his notice of intention was untimely. He also states that he has not had an opportunity to gather his medical records to support his medical malpractice claim. Finally, he argues that claim 108888 should be deemed timely.

Initially, inasmuch as the timeliness of claim 108888 is not presently before this Court, no determination is made in this regard. With respect to claimant's late claim application and his pending motion, claimant fails to allege that "the [c]ourt overlooked or misapprehended the facts and/or the law" in arriving at its prior decision (Loris v S & W Realty Corp., 16 AD3d 729, 730 [3d Dept 2005]). Thus, reargument is not warranted (id.). Next, a motion seeking leave to renew "shall be based upon new facts not offered on the prior motion that would change the prior determination * * * and * * * shall contain reasonable justification for the failure to present such facts on the prior motion" (CPLR 2221[e]; see Stocklas v Auto Solutions of Glenville, Inc, 9 AD3d 622, 625 [3d Dept 2004]). Claimant's submissions do not meet this standard.

Accordingly, claimant's motion M-70887 for leave to renew and/or reargue is denied.




March 20, 2006
Albany, New York

HON. JUDITH A. HARD
Judge of the Court of Claims


Papers Considered:


1. Notice of Motion filed October 31, 2005;

2. Affidavit of Peter McDonald sworn to October 26, 2005; Exhibits A-B;

3. Affirmation of Paul F. Cagino filed November 14, 2005;

4. Reply Affidavit of Peter McDonald sworn to November 15, 2005; unnumbered exhibit annexed.