New York State Court of Claims

New York State Court of Claims

STEWART v. THE STATE OF NEW YORK, #2008-015-020, Claim No. 111457, Motion No. M-74363


Synopsis


Claimant's motion to reargue and renew prior motion for Summary Judgment was denied and renewal was granted with respect to a change of venue.

Case Information

UID:
2008-015-020
Claimant(s):
CYNTHIA STEWART
Claimant short name:
STEWART
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
111457
Motion number(s):
M-74363
Cross-motion number(s):

Judge:
FRANCIS T. COLLINS
Claimant’s attorney:
Rovegno & Taylor, P.C.By: Robert B. Taylor, Esquire
Defendant’s attorney:
Honorable Andrew M. Cuomo, Attorney General
By: Michele M. Walls, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
March 6, 2008
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant moves to reargue and renew her prior motion for partial summary judgment on the issue of liability and for a change of venue from the Albany District to the New York District of the Court of Claims. The claim alleges that claimant was injured when she was struck by a cart loaded with tables as she was walking in the lobby of the New York State Museum and Cultural Center in Albany, New York on July 5, 2005. In the prior motion for summary judgment (Cynthia Stewart v State of New York, Claim No. 111457, Motion No. M-73722, Ct Cl, October 19, 2007, Collins, J. [UID-2007-015-246], unreported) claimant relied exclusively on the examination before trial testimony of Albert Gnidica, an employee of the New York State Museum, who was pushing the cart when the accident occurred. Mr. Gnidica testified that there were six round stacking tables measuring approximately 72 inches in diameter placed vertically on the cart. The rack was rectangular with four posts and four wheels. Mr. Gnidica exited the elevator on the first floor and, pushing the rack from behind, slowly proceeded toward the middle of the lobby. Mr. Gnidica testified that he was “carefully” watching an elderly group of people walking from left to right across the lobby and that as he neared the middle of the lobby the claimant “was knocked into the rack of tables I was pushing”. There was no sound or warning prior to the accident and Mr. Gnidica testified that he did not see the claimant before it occurred.

In support of her motion to reargue and renew that branch of the prior motion which sought summary judgment on the issue of liability the claimant submits an affidavit from an eyewitness to the accident. In support of her motion to reargue and renew that branch of the prior motion which sought a change of venue claimant submits an affidavit from her physician indicating that she is unable to travel to Albany for trial.

The Motion To Reargue

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]). Here, the claimant failed to establish that the Court overlooked or misapprehended matters of fact or misapplied existing law to the facts presented.

This Court noted in its prior decision the statement of the Court of Appeals in Ugarriza v Schmieder (46 NY2d 471, 474 [1979] ) that “[n]egligence cases by their very nature do not usually lend themselves to summary judgment, since often, even if all of the parties are in agreement as to the underlying facts, the very question of negligence is itself a question for jury determination”. The facts in Ugarriza are instructive. There, the Court of Appeals denied plaintiff’s motion for summary judgment although it was undisputed that the automobile operated by the defendant driver struck a cement divider separating two sections of a parking lot. Noting that the accident occurred in an unilluminated parking lot at approximately 4 o’clock in the morning and that the defendant driver stated he was alert and paying attention, and traveling at a speed between 20 and 25 miles per hour, the Court held that it could not conclude “as a matter of law that the defendant’s conduct fell far below any permissible standard of due care” (id. at 476, citing Andre v Pomeroy, 35 NY2d 361, 364 [1974]). Here, too, even if it could be said that the facts are largely undisputed, the very issue of negligence is itself a question of fact precluding summary judgment in the claimant’s favor. Mr. Gnidica’s testimony that he was moving slowly and carefully watching the group of people with whom the claimant was walking when the accident occurred militates against finding, as a matter of law, that his conduct fell far below a permissible standard of care.

The Motion To Renew

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]).

Claimant submitted an affidavit from Barbara Richards, an eyewitness to the incident, presumably in support of that branch of her motion requesting renewal of her prior motion for summary judgment on liability. First, claimant’s failure to offer a reasonable justification for her earlier failure to present the affidavit warrants denial of the motion on this basis alone. More importantly, however, Ms. Richards’ affidavit adds little to the version of events as described by Mr. Gnidica except for the conclusion that “the person pushing the gurney should have observed Cynthia Stewart in front of him since he was pushing the gurney directly in her direction, and failed to look where he was going.” As set forth above, Mr. Gnidica testified that he was moving slowly and carefully watching the elderly group with whom the claimant was traveling. Ms. Richard's conclusory assertions are insufficient to negate the questions of fact which exist with regard to the issue of negligence.

Lastly, the Court previously denied the claimant’s motion for a change of venue with leave to renew upon the submission of appropriate medical evidence. The claimant has now submitted an affirmation of Jagdish Gupta, M.D., which sufficiently establishes the fact that she is unable to travel to Albany for trial due to her many physical ailments which, in addition to the usual ailments of old age (claimant’s date of birth is March 3, 1925), include cardiovascular disease, chronic renal insufficiency, anemia, osteoporosis, and generalized atherosclerosis. Accordingly, claimant’s motion to renew is granted to the extent it requests a change of venue from the Albany District to the New York District of the Court of Claims (see DeGregorio v DeGregorio, 251 AD2d 366, 367 [1998]; Mavrakis v Waldbaums, Inc., 302 AD2d 501 [2003]; Zinker v Zinker, 185 AD2d 698 [1992]).

Based on the foregoing, the claimant’s motion to renew is granted to the extent it requests a change of venue from the Albany District to the New York District of the Court of Claims and the motion to renew and reargue is otherwise denied. The Clerk of the Court is directed to reassign this claim accordingly.


March 6, 2008
Saratoga Springs, New York

HON. FRANCIS T. COLLINS
Judge of the Court of Claims


The Court considered the following papers:
  1. Notice of motion dated December 14, 2007;
  2. Affirmation of Robert B. Taylor dated December 14, 2007 with exhibits;
  3. Affidavit of Cynthia Stewart sworn to December 19, 2007;
  4. Affirmation of Dr. Jagdish Gupta dated December 17, 2007;
  5. Affidavit of Barbara Richards sworn to December 21, 2007;
  6. Affirmation in opposition of Michele M. Walls dated January 9, 2008.