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.
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,
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.