Filed Papers: Claim, Verified Answer, Decision and Order to Motion Nos.
In his filed claim, claimant seeks damages for personal injuries allegedly
suffered by him in an inmate-on-inmate assault, which occurred on September 3,
2003, when claimant and his assailant were incarcerated at Oneida Correctional
Facility. Claimant alleges that the State had prior notice that he was
potentially subject to an assault by this assailant, and failed to take
appropriate steps to prevent the attack.
Claimant previously brought a motion (Motion No. M-71225) seeking an order
granting him summary judgment on this claim. By a Decision and Order dated May
23, 2006, his application was denied by this Court.
In that Decision and Order, the Court noted that claimant had submitted
affidavits from two fellow inmates in an attempt to establish that the State had
prior notice of a potential assault against claimant. The Court further noted,
however, that the defendant had submitted an affidavit from a correction officer
directly contradicting the statements set forth in those affidavits. Based on
the contradictory affidavits submitted, this Court found that a material issue
of fact existed with regard to potential State liability, and therefore denied
claimant’s application for summary judgment.
In this motion, claimant has submitted an affidavit from a third inmate, as
well as various other documents, in further support of his allegation that the
State had prior notice of this potential assault, and therefore seeks to renew
and/or reargue his prior motion seeking summary judgment.
It is well settled that a motion to renew shall be based upon new facts not
offered on the prior motion or shall demonstrate that there has been a material
change in the law that would change the prior determination (CPLR Rule
2221[e]). In this particular matter, there has been no material change in
the law, and despite the additional affidavit and documentation submitted by
claimant, he has failed to offer any new facts which would alter this
Court’s prior determination that an issue of material fact (i.e., prior
notice) exists which prevents this Court from granting the requested relief of
To the extent that claimant’s motion may be deemed a motion for
re-argument, it must also fail as well. A motion to reargue 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.” (Foley v Roche, 68 AD2d 558, 567; CPLR 2221[d]). Such a
motion is not casually granted since it is not a tool to “afford an
unsuccessful party successive opportunities to reargue issues previously
decided....” (Matter of Mayer v National Arts Club, 192 AD2d 863,
865). Here, claimant has made no showing to indicate that the court overlooked
any facts or law originally presented that warrants reargument of this
Court’s prior Decision and Order.
Therefore, based on the foregoing, it is
ORDERED, that Motion No. M-73531 is hereby DENIED.