New York State Court of Claims

New York State Court of Claims

WILLETTS v. THE STATE OF NEW YORK, #2007-015-230, Claim No. NONE, Motion No. M-73594


Motion to renew or reargue prior motion for late claim relief was denied. Late claim relief was unnecessary with respect to the mentally incompetent adult claimant. Remaining claimants failed to establish that the Court overlooked the facts or miscomprehended the law in denying their prior motion, and no basis for renewal existed.

Case Information

JOHN F. WILLETTS, II and TINA LUPO, Individually and as Parents and Natural Guardians of John F. Willetts, III
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:
Robert J. Chauvin, Esquire
Defendant’s attorney:
Honorable Andrew M. Cuomo, Attorney General
By: Michael T. Krenrich, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
August 31, 2007
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Movants, John F. Willetts, II, and Tina Lupo, individually and as parents and natural guardians of John F. Willetts, III, seek reargument and renewal of their prior motion to permit the filing and service of a late claim. The proposed claim alleges that John F. Willetts, III, a mentally disabled person in the care and custody of the Oswald D. Heck Developmental Center, was assaulted by another resident of the facility due to the negligent supervision of the State. The movants previously argued that late claim relief was unnecessary with respect to the allegedly disabled movant, John F. Willetts, III, because he was under a qualifying disability at the time the cause of action arose so as to invoke the tolling provisions contained in Court of Claims Act § 10(5) and CPLR 208. However, due to the movants' failure to submit any evidence in support of the allegation that John F. Willetts, III, was indeed disabled, the Court was constrained to decide the late claim application which was made on behalf of all of the movants. Movants now submit medical records of John F. Willetts, III, in support of their motion to renew and reargue together with an affidavit from his father, John F. Willetts, II, which indicate that John F. Willetts, III, suffers from Downs Syndrome, is completely incapable of tending to his daily living needs and requires constant supervision. This evidence sufficiently substantiates the contention that John F. Willetts, III suffers from a mental disability within the meaning of the tolling statutes (McCarthy v Volkswagen of Amer., 55 NY2d 543, 548 [1982]; see also Boland v State of New York, 30 NY2d 337 [1972]; Kelly v Solvay Union Free School Dist., 116 AD2d 1006 [1986]; Lynch v Carlozzi, 284 AD2d 865 [2001]. Given this finding the motion to renew and reargue on behalf of John F. Willetts, III, is unnecessary as his time to serve and file a claim has not yet expired (id.; see also Thomas v State of New York, Ct Cl, July 5, 2007 [Claim No. 105847, Motion No. M-66169, UID # 2007-028-550] Sise, P.J., unreported; O'Reilly v State of New York, Ct Cl, April 18, 2005 [Claim No. None, Motion No. M-69603, UID #2005-032-035] Hard, J., unreported).

The motion for reargument on behalf of John F. Willetts, II, and Tina Lupo in their individual capacities is denied. A motion to reargue is addressed to the sound discretion of the Court and requires the moving party to demonstrate that the Court overlooked or misapprehended matters of fact or misapplied existing law to the facts presented (see, CPLR 2221 [d][2]; Peak v Northway Travel Trailers, 260 AD2d 840 [1999]; Spa Realty Assoc. v Springs Assoc., 213 AD2d 781 [1995]). Such a motion does not serve as a vehicle to permit the unsuccessful party to argue once again the very questions previously decided (see, Foley v Roche, 68 AD2d 558, 567 [1979], lv denied 56 NY2d 507 [1982]). Movants' contrary assertion notwithstanding, the Court did not overlook the fact that John F. Willetts, III, was transported to the hospital two days after the assault. This fact, standing alone, is insufficient to support the conclusion that the defendant had "notice of the essential facts constituting the claim" (Court of Claims Act § 10[6]) which has been held to mean that the State must be aware that there is likely to be litigation in the future (Barrett v State of New York, Ct Cl, June 30, 2000 [Claim No. None, Motion No. M-60959, UID # 2000-001-036] Read, J., unreported, citing Block v New York State Thruway Auth., 69 AD2d 930 [1979]). No proof was offered on the prior motion that the State was aware of the likelihood of litigation, that it conducted an investigation or had a reasonable opportunity to conduct an investigation. As a result, it was determined that the factors of notice, opportunity to investigate and prejudice weighed against granting the motion.

It was also determined on the prior motion that the movants advanced no reasonable excuse for their failure to timely serve and file the claim. The excuse offered was that there was an ongoing investigation into the facts and circumstances of the claim. However, as noted by this Court in its prior order, there was no indication of the nature of the investigation, the results of the investigation, or when sufficient facts were obtained to enable the movants to identify the State as a potential defendant. Moreover, although the affidavit of John F. Willetts, II in support of the instant motion indicates that he was unaware of the time limitations for the commencement of an action in the Court of Claims, ignorance of the law is not a reasonable excuse for the failure to timely file a claim (Matter of Robinson v State of New York, 35 AD3d 948 [2006]).

With respect to the required showing of merit, movants offered nothing from which the Court could conclude that the claim had the appearance of merit (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1 [1977]). A residential care facility is not an insurer of the safety of its residents (Killeen v State of New York, 66 NY2d 850, 851 [1985]) and a general allegation of negligence unsupported by factual detail is insufficient to establish a meritorious cause of action (Witko v State of New York, 212 AD2d 889, 891 [1985]). Thus, the Court is unpersuaded that it overlooked matters of fact or misapplied existing law to the facts presented. The motion for reargument is therefore denied.

It is well settled that " 'a motion to renew must be based upon newly discovered evidence which existed at the time the prior motion was made, but was unknown to the party seeking renewal, along with a justifiable excuse as to why the new information was not previously submitted' " (Tibbits v Verizon N.Y., Inc., 40 AD3d 1300, 1302-1303 [2007]; quoting Wahl v Grippen, 305 AD2d 707, 707 [2003]; see also CPLR 2221[e]). "Because renewal is not a second chance freely given to parties who have not exercised due diligence in making their first factual presentation, a party seeking that relief must provide a reasonable justification for the earlier failure to present such facts" (Cippitelli v County of Schenectady, 307 AD2d 658, 658 [2003][internal quotation marks and citation omitted]). In support of their motion for renewal, movants submitted certified medical records of the treatment rendered John F. Willetts, III following the alleged assault, a police report dated July 25, 2006, an affidavit from Sarah Fredericks, and an affidavit from John F. Willetts, II. The medical records reflect the nature of the injury sustained and the fact that John F. Willetts, III suffers from Down's syndrome. The police report indicates the name of the suspected assailant and the fact of his residence at the Oswald D. Heck Developmental Center. Notably, the police report also indicates that the movants "want the facility to be accountable for the injuries to their son" and that "[t]hey were told that thier (sic) son's aide was out smoking a cigarette when the attack occurred" (movants' Exhibit E). The affidavit of Sarah Fredericks indicates that she is a secretary for movants' counsel and, upon receipt of the opposition papers from the State, she telephoned the Court to request an adjournment of the motion in order to submit further documents in reply. She indicates that counsel for the movants was on vacation at the time the request was made. She also indicates that the Court denied her request for an adjournment.

Review of the Court file in this matter does not substantiate the contention that an adjournment was either requested or denied and it is the practice of this Court to require that all such requests be made in writing. In any event, the Court does not find the excuse offered for the movant's failure to previously submit the police report, medical records or the affidavit of John Willetts, II reasonable. All of these documents were available at the time the original motion was made and no reasonable excuse has been offered as to why they were not submitted together with the original motion. Moreover, had an adjournment of the motion been requested and granted, consideration of documentary evidence submitted for the first time in reply papers would not have been appropriate (Jackson-Cutler v Long, 2 AD3d 590 [2003]).

Accordingly, the motion for renewal and reargument on behalf of John F. Willetts, III, is denied as unnecessary, and denied as to the remaining claimants in their individual capacities.

August 31, 2007
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated June 15, 2007;
  2. Affidavit of Robert J. Chauvin sworn to June 15, 2007 with exhibits;
  3. Affirmation of Michael T. Krenrich dated June 9, 2007.