New York State Court of Claims

New York State Court of Claims

MOJICA v. THE STATE OF NEW YORK, #2007-030-567, Claim No. 111314, Motion No. M-73587


Synopsis


Pro se inmate’s motion to reargue denial of his prior motion to dismiss defenses and for summary judgment denied. [See Mojica v State of New York, UID # 2007-030-519, Claim No. 111314, Motion No. M-72772, Decision and Order (Scuccimarra, J., March 15,2007)]. Underlying claim asserts correctional facility negligently allowed dangerous fitness equipment to be used. Claimant alleges that he was injured when part of a 40 pound dumbbell he had lifted into the air detached, striking claimant in the forehead, and causing him serious injury

Case Information

UID:
2007-030-567
Claimant(s):
KENNETH MOJICA
Claimant short name:
MOJICA
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
111314
Motion number(s):
M-73587
Cross-motion number(s):

Judge:
THOMAS H. SCUCCIMARRA
Claimant’s attorney:
KENNETH MOJICA, PRO SE
Defendant’s attorney:
HON. ANDREW M. CUOMO, NEW YORK STATE ATTORNEY GENERAL
BY: BARRY KAUFMAN, ASSISTANT ATTORNEY GENERAL
Third-party defendant’s attorney:

Signature date:
September 19, 2007
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)

.
Decision

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


decision and order of this court:

1,2 Notice of Motion; Affidavit by Kenneth Mojica, Claimant

  1. Affirmation in Opposition to Motion for leave to Reargue by Barry Kaufman, Assistant Attorney General
4-6 Filed papers: Claim, Answer, Mojica v State of New York, UID # 2007-030-519, Claim No. 111314, Motion No. M-72772, Decision and Order (Scuccimarra, J., March 15, 2007) and underlying papers

Kenneth Mojica alleges in Claim Number 111314 that Defendant’s agents at Green Haven Correctional Facility (hereafter Green Haven) negligently allowed dangerous fitness equipment to be used at the facility, resulting in Claimant’s serious injury. [Claim Number 111314, ¶ 3]. Specifically, Claimant alleges that he was injured when part of a forty (40) pound dumbbell he had lifted into the air detached, striking claimant in the forehead. [Id.]. In its Answer, in addition to a general denial, the Defendant asserts the affirmative defense that any injuries or damages to claimant were caused in whole or in part by his own culpable conduct, or the culpable conduct of others for whom the State of New York has no legal responsibility.

In previous motion practice, claimant made application to strike defendant’s defenses and for summary judgment, which application was denied. [See Mojica v State of New York, UID

# 2007-030-519, Claim No. 111314, Motion No. M-72772, Decision and Order (Scuccimarra, J., March 15, 2007)]. Claimant now seeks reargument of his prior application. Civil Practice Law and Rules §2221

“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); Loris v S & W Realty Corp., 16 AD3d 729, 730 (3d Dept 2005); see 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).

After careful review of the papers submitted, they do not establish that the Court misapplied any controlling principle of law or otherwise misconstrued the issues presented. All that claimant is doing in the papers presented is repeating arguments considered earlier, and/or raising new ones not raised earlier.

The motion for reargument is in all respects denied.

September 19, 2007
White Plains, New York

HON. THOMAS H. SCUCCIMARRA
Judge of the Court of Claims