New York State Court of Claims

New York State Court of Claims

BROWN v. THE STATE OF NEW YORK, #2008-038-580, Claim No. 107770, Motion No. M-74105


Claimant’s motion to renew/reargue opposition to motion to dismiss denied. Claimant failed to demonstrate that failure to oppose initial motion was justified

Case Information

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:
Defendant’s attorney:
ANDREW M. CUOMO, Attorney General of the State of New York
By: Dennis M. Acton, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
January 7, 2008

Official citation:

Appellate results:

See also (multicaptioned case)


Defendant’s motion to dismiss this pro se inmate’s claim on the ground that it was not timely filed and served upon the Attorney General within 90 days of the accrual date has been previously granted by this Court (see Brown v State of New York, UID # 2007-038-558, Claim No. 107770, Motion No. M-73868, DeBow, J. [Sept. 10, 2007]). The claim alleged a failure to provide medical treatment for injuries received on three occasions, most recently on July 24, 2002, which date was determined to be the accrual date for purposes of the motion. Claimant submitted no opposition to the motion, and he now moves pursuant to CPLR 2221 to “vacate” the Court’s prior decision and order dismissing the claim and to renew the motion. In the alternative, claimant requests permission to file a late claim (see Court of Claims Act § 10 [6]). Defendant has submitted the affirmation of an assistant attorney general, which offers cursory opposition to the motion. Claimant’s instant motion asserts that the Court incorrectly determined the date of accrual because defendant’s alleged “negligence and malpractice” is in the nature of medical malpractice, and the failure to treat claimant’s injuries did not cease on July 24, 2002 but is continuous and ongoing to the present. He further asserts that the circumstances of his incarceration rendered him unable to timely oppose defendant’s motion to dismiss.

A motion to renew or reargue may be granted only in limited circumstances. A motion to renew is one upon which a party may present facts not presented on the initial application, and relief is available only when there are new facts presented and when the movant offers a justifiable excuse for the failure to earlier present those facts (see Cippitelli v County of Schenectady, 307 AD2d 658 [3d Dept 2003]; Grassel v Albany Medical Center Hospital, 223 AD2d 803, 804 [3d Dept 1996], lv denied, lv dismissed 88 NY2d 842 [1996]; Matter of Barnes v State of New York, 159 AD2d 753 [3d Dept 1990], lv dismissed 76 NY2d 935 [1990]; see also, Kambour v Farrar, 188 AD2d 719 [3d Dept 1992]). A motion for renewal is “not a second chance freely given to parties who have not exercised due diligence in making their first factual presentation” (Carota v Wu, 284 AD2d 614, 617 [3d Dept 2001] [internal quotes and citation omitted]).
A motion to reargue is one which seeks to persuade the court that its ruling should be reconsidered because the court “overlooked or misapprehended the facts and/or the law or mistakenly arrived at its earlier decision” (Peak v Northway Travel Trailers, Inc., 260 AD2d 840, 842 [3d Dept 1999]). “The motion is not designed to afford an unsuccessful party successive opportunities to reargue issues previously decided or to present arguments different from those originally asserted” (Matter of Mayer v National Arts Club, 192 AD2d 863, 865 [3d Dept 1993]; see also Rubinstein v Goldman, 225 AD2d 328 [1st Dept 1996], lv denied 88 NY2d 815 [1996]; William P. Pahl Equip. Corp. v Kassis, 182 AD2d 22 [1st Dept 1992], lv denied, lv dismissed 80 NY2d 1005 [1992]; Foley v Roche, 68 AD2d 558 [1st Dept 1979]).

To the extent claimant seeks to renew or reargue the motion to dismiss on the ground that his causes of action did not accrue because defendant’s alleged negligence is continuing, such a motion cannot be granted. Claimant’s motion to renew must fail as all of the facts recited in the exhibit to claimant’s affidavit were available to claimant at the time the motion was made, but claimant did not submit this document in timely opposition to the motion and, as noted above, a motion to renew should be based upon new facts. Claimant’s recitation of his lack of knowledge of the law, and his limited access to the law library or notary services does not provide a justifiable excuse for his failure to present those facts in a timely response to defendant’s motion (cf. Robinson v State of New York, 35 AD3d 948 [3d Dept 2006]; Marino v State of New York, UID #2005-030-526, M-69705, Scuccimarra, J. [May 3, 2005]; Boyd v State of New York, #2004-030-512, M-67708, Scuccimarra, J. [March 3, 2004]). Claimant’s further assertion that he was given only seven days to reply to the motion is inconsequential, as he does not argue that defendant’s service of the motion and demand for a reply was not compliant with the service requirements of the CPLR. Moreover, claimant could have submitted a timely request for an adjournment of the return date of defendant’s motion, which would have necessitated no legal research or notarization.

To the extent claimant’s motion is one to reargue on the ground that the Court misapprehended the nature of his claim and its accrual date, it will not be granted. The Court did not misapprehend the nature of the claim – although it was unclear whether claimant sought to hold the State liable for the injuries he sustained in altercations with inmates and correction officers – as the prior decision specifically acknowledges that the claim alleged that claimant was denied adequate medical treatment. With regard to the date of accrual, the claim alleged only that the medical treatment was required to address “the injuries,” and that the latest injury was sustained on July 24, 2002. The claim asserts no further facts from which it could be inferred that defendant’s alleged malpractice was ongoing and continuous so as to delay the commencement of any applicable time periods beyond July 24, 2002. Further, as noted above, a motion to reargue does not afford an opportunity to advance new arguments.

To the extent claimant requests permission to file a late claim, his motion fails to set forth any information that would permit the Court to consider the factors set forth in Court of Claims Act § 10(6). Thus, the request for late filing and service of the claim cannot be granted and is denied without prejudice. Accordingly, it is

ORDERED, that Motion No. M-74105 is DENIED.

January 7, 2008
Albany, New York

Judge of the Court of Claims

Papers considered

(1) Claim No. 107770, filed May 21, 2003;

(2) Decision and Order, UID # 2007-038-558, dated September 10, 2007;

(3) Notice of Motion, dated October 11, 2007

(4) Affidavit of Antonio Brown in Support of Motion to Vacate, Motion to Renew,

Motion to File Late Claim, sworn to October 11, 2007, with exhibit;

(5) Affidavit in Opposition of Dennis M. Acton, AAG, sworn to October 26, 2007.