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 ; see also Boland v
State of New York, 30 NY2d 337 ; Kelly v Solvay Union Free School
Dist., 116 AD2d 1006 ; Lynch v Carlozzi, 284 AD2d 865 .
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.,
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]; Peak v Northway
Travel Trailers, 260 AD2d 840 ; Spa Realty Assoc. v Springs
Assoc., 213 AD2d 781 ). 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 , lv
denied 56 NY2d 507 ). 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) 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 ). 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
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 ).
A residential care facility is not an insurer of the safety of its residents
(Killeen v State of New York, 66 NY2d 850, 851 ) 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 ). 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 ; quoting Wahl v Grippen, 305
AD2d 707, 707 ; 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
[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 ).
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.