New York State Court of Claims

New York State Court of Claims

BENJAMIN v. THE STATE OF NEW YORK, #2009-030-539, Claim No. 115343, Motion No. M-76765


Synopsis


Motion to reargue or renew denied, both because motion untimely and more substantively. Prior decision granted pre-answer motion to dismiss claim alleging medical malpractice.

Case Information

UID:
2009-030-539
Claimant(s):
DAVID BENJAMIN
Claimant short name:
BENJAMIN
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
115343
Motion number(s):
M-76765
Cross-motion number(s):

Judge:
THOMAS H. SCUCCIMARRA
Claimant’s attorney:
DAVID BENJAMIN, 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:
July 20, 2009
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 or renew

or vacate this court’s prior dismissal of his claim:

1,2 Motion to Vacate Decision and Order of August 28, 2008 Granting Defendant’s Motion to Dismiss claimant’s claims; Affidavit in Support of Motion to Vacate the Decision and Order of August 28, 2008 by David Benjamin, Claimant

  1. Affirmation in Opposition by Barry Kaufman, Assistant Attorney General, attorney for defendant and attached exhibits
  1. Motion to Vacate Decision etc., by claimant treated as Reply received July 2, 2009
5-7 Filed papers: Claim, Benjamin v State of New York, UID # 2008-030-555, Claim No. 115343, Motion No. M-75244 (Scuccimarra, J., August 28, 2008) (and underlying papers); Benjamin v State of New York, Claim No. 108834; Motion Nos. M-68050, M-68109, unreported decision (Scuccimarra, J., June 4, 2004) (and underlying papers)

After a pre-answer motion, this Court dismissed Claim Number 115343 on August 28, 2008. [See Benjamin v State of New York, UID # 2008-030-555, Claim No. 115343, Motion No. M-75244 (Scuccimarra, J., August 28, 2008)]. Such decision and order was served with notice of entry on or about September 16, 2008. Claimant now seeks to vacate the dismissal, however his application has been treated as one for reargument or renewal since a motion to vacate pursuant to Civil Practice Law and Rules §4404 is a post-trial motion.

“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 §2221(d)(2) Civil Practice Law and Rules. Successive opportunities to present different arguments than those originally presented should not be allowed. Amato v Lord & Taylor, Inc., 10 AD3d 374, 375 (2d Dept 2004).

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).

A renewal motion asks the Court to consider new facts not previously offered that would change the earlier determination, or a change in the law that would change the prior determination. Civil Practice Law and Rules §2221(e). With respect to new facts the motion should contain “reasonable justification for the failure to present such facts on the prior motion.” Civil Practice Law and Rules §2221(e)(3).

David Benjamin alleged in claim number 115343 that on April 4, 2008 he received copies of some medical records concerning treatments he received for his shoulder on or about February 1, 2001 and, apparently, realized that such treatment had been inadequate. He wrote that when he saw an MRI of his right shoulder completed sometime “in the year 2007" he read that a Dr. Stephen Schwartz - who had first examined him in the facility clinic on January 19, 2000 - delayed in giving him appropriate medical treatment until February 1, 2001 when Dr. Schwartz then performed surgery at Saint Agnes Hospital to repair, among other areas, his right rotator cuff. [Claim No. 115343, ¶¶ 2 and 3]. Notably, a claim concerning the same surgery was dismissed several years ago. [See Benjamin v State of New York, Claim No. 108834; Motion Nos. M-68050, M-68109, unreported decision (Scuccimarra, J., June 4, 2004)].

As an initial matter, the motion is denied because it was not timely brought within thirty (30) days of service of the decision and order with notice of entry. The motion was served on or about May 28, 2009 and filed in the Office of the Chief Clerk of the Court of Claims on June 1, 2009, well after the allowed time frame.

More substantively, claimant repeats the same matters concerning surgery he apparently received in 2001 he has repeated in connection with this as well as another previously dismissed claim and associated applications for late claim relief and reargument.[1] He now brings up the continuous treatment doctrine as discussed in a recent Second Department case [see Gomez v Katz, 61 AD3d 108 (2d Dept 2009)], but ignores the inconsistencies between his own circumstances in which purportedly continuous treatment was interrupted by the commencement of a lawsuit evincing a lack of trust and confidence in continued care, and those present in the cited case. This is a different argument from the one presented previously and as such is not appropriately raised on a reargument motion. Amato v Lord & Taylor, Inc., supra.

Based on the foregoing, the papers submitted here do not establish that the Court misapplied any controlling principle of law; therefore the motion for reargument is denied. Similarly, the papers submitted do not present any rationale for the failure to present purportedly additional information earlier, nor is any new information presented. Treated as a motion to renew the application is also denied.

Accordingly, Claimant's motion number M- 76765 is in all respects denied.

July 20, 2009
White Plains, New York

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




[1].Benjamin v State of New York, UID # 2008-030-555, Claim No.115343, Motion No. M-75244 (Scuccimarra, J., August 28, 2008);Benjamin v State of New York, UID # 2004-030-577, Claim No. 108834, Motion No. M-68791(Scuccimarra, J., October 8, 2004); Benjamin v State of New York, Claim No. 108834; Motion Nos. M-68050, M-68109, unreported decision (Scuccimarra, J., June 4, 2004).