New York State Court of Claims

New York State Court of Claims

ARCIOLA v. BIPIN J. BHAVSAR. M.D., NEW YORK STATE DEPARTMENT OF CORRECTIONAL SERVICES, And THE STATE OF NEW YORK, #2008-032-131, Claim No. N/A, Motion No. M-75440


Synopsis


Case Information

UID:
2008-032-131
Claimant(s):
MICHAEL ARCIOLA
Claimant short name:
ARCIOLA
Footnote (claimant name) :

Defendant(s):
BIPIN J. BHAVSAR. M.D., NEW YORK STATE DEPARTMENT OF CORRECTIONAL SERVICES, And THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
N/A
Motion number(s):
M-75440
Cross-motion number(s):

Judge:
JUDITH A. HARD
Claimant’s attorney:
Law Office of Richard L. Giampa, Esq., P.C.By: Michael J. Ryan, Esq.
Defendant’s attorney:
Hon. Andrew M. Cuomo, NYS Attorney GeneralBy: Kent B. Sprotbery, Assistant Attorney General, Of Counsel
Third-party defendant’s attorney:

Signature date:
December 22, 2008
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant moves pursuant to CPLR 2221(e), for leave to renew his previous motion to file a late claim (M-74831), which was denied in a Decision and Order filed July 16, 2008. In his proposed underlying claim, claimant alleges that while he was an inmate at Shawangunk Correctional Facility, he was not properly treated or tested for testicular cancer, which caused him to sustain personal injuries.

The decision to grant or deny an application for permission to file a late claim lies within the broad discretion of the Court of Claims (Matter of Gonzalez v State of New York, 299 AD2d 675 [3d Dept 2002]). After determining that the claim would have been timely under the applicable Statute of Limitations, the Court reviewed the factors for filing a late claim, pursuant to Court of Claims Act §10(6), and determined that claimant had, in its earlier motion, failed to present a reasonable excuse for his failure to timely file and failed to show that his claim was meritorious, the latter of which is the most decisive factor (see Savino v State of New York, 199 AD2d 254 [2d Dept 1993]). The Court found that claimant’s improper commencement of an action in Supreme Court was not excusable, and further, that his failure to provide expert medical evidence was fatal to establishing a meritorious claim for medical malpractice and/or medical negligence.

CPLR 2221(e) provides, in pertinent part, that a motion to renew “shall be based upon new facts not offered on the prior motion...[and] shall contain reasonable justification for the failure to present such facts on the prior motion.” Renewal is not guaranteed and “is not a second chance freely given to parties who have not exercised due diligence in making their first factual presentation” (see Matter of Barnes v State of New York, 159 AD2d 753 [3d Dept 1990]; see also Matter of Beiny, 132 AD2d 190 [1st Dept 1987], lv dismissed, 71 NY2d 994 [1988]).

In support of his motion for leave to renew, claimant states that he was unaware that he should have included an expert medical affidavit in support of his earlier motion, and that he has since obtained such an affidavit and annexed it to the current motion. While the Court appreciates claimant’s efforts in obtaining said affidavit, it finds that his reason for failing to initially present the same is not “reasonable justification”, as required by CPLR 2221(e). Claimant acknowledges having spoken with said expert prior to making the initial motion and clearly could have included said expert’s affidavit in his initial application. The fact that he did not constrains this Court to deny the relief requested (see Grassel v Albany Med. Ctr. Hosp., 223 AD2d 803 [3d Dept 1996]; see also Koumianos v State of New York, 141 AD2d 189 (3d Dept 1988); Delvecchio v Bayside Chrysler Plymouth Jeep Eagle, 271 AD2d 636 [2d Dept 2000][motion to renew was properly denied where “[t]he additional information submitted upon renewal was known to the defendants when the original motion and cross motion were made, and they did not proffer a reasonable excuse for their failure to present those facts at that time...”]).

In light of the foregoing, claimant’s motion for leave to renew his previous motion to file a late claim is denied.



December 22, 2008
Albany, New York

HON. JUDITH A. HARD
Judge of the Court of Claims


Papers Considered:


1. Notice of Motion for Leave to Renew Previous Motion to File a Late Claim, dated August 21, 2008, and accompanying Affirmation of Michael J. Ryan, Esq., dated August 21, 2008, along with Exhibits A - G;

2. Affirmation of Kent B. Sprotbery, Esq., in Opposition to Claimant’s Motion for Leave to Renew Previous Motion to File a Late Claim, dated September 24, 2008;

3. Reply Affirmation of Michael J. Ryan, Esq., in Support of Claimant’s Motion to Renew his Previous Motion to File a Late Claim, dated September 30, 2008.