New York State Court of Claims

New York State Court of Claims

BENJAMIN v. THE STATE OF NEW YORK, #2009-030-560, Claim No. 115343, Motion No. M-77096


Synopsis


Motion to vacate dismissal, reargue/renew prior denial of reargument denied.

Case Information

UID:
2009-030-560
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-77096
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:
October 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:

1,2 Motion Pursuant to CPLR §5015(a) and CPLR §2004 and also CPLR §2215 to Vacate the Claimant’s Claims Dismissal of August 28, 2008 and the denial of July 31st, ‘09 of Claim No. 115343, UID # 2008-030-555 and Motion No. M-75244; Affidavit in Support by David Benjamin, Claimant

  1. Affirmation in Opposition by Barry Kaufman, Assistant Attorney General, attorney for defendant and attached exhibit
4-7 Filed papers: Claim, Benjamin v State of New York, Claim No. 115343, Motion No. M-76765, UID # 2009-030-539 (Scuccimarra, J., July 20, 2009)(and underlying papers); 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.[1]

Thereafter, in additional motion practice brought almost a year later, claimant sought reargument or renewal or vacatur. Such motion was denied.[See Benjamin v State of New York, Claim No. 115343, Motion No. M-76765, UID # 2009-030-539, (Scuccimarra, J., July 20, 2009)]. The decision and order denying the motion for vacatur, reargument or renewal was mailed to claimant on or about July 31, 2009.

Claimant again seeks to vacate the dismissal, and to vacate or reargue or renew the prior decision and order denying vacatur, reargument or renewal in the present motion.

The reasoning contained in the Court’s Decision and Order signed July 20, 2009, and filed on about July 31, 2009 is incorporated herein and will not be repeated. In the present motion, claimant appears to rely on additional sections of the Civil Practice Law and Rules that are not relevant here [see e.g. Civil Practice Law and Rules §2004[2] and 5015(a)[3]] and repeats the same matters concerning surgery he apparently received in 2001, and follow-up treatment in successive years, that he has included in connection with this claim, as well as another previously dismissed claim, and its associated applications for late claim relief and reargument.[4]

The papers submitted here do not establish that the Court misapplied any controlling principle of law; or that any new information presented (and no new information is presented) would change the result.

Accordingly, claimant’s motion number M- 77096 is in all respects denied.


October 20, 2009
White Plains, New York

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




[1]. According to the file maintained by the Chief Clerk of the Court of Claims, claimant also filed a Notice of Appeal from the dismissal of Claim number 115343 on September 29, 2008. Such notice was forwarded to the Second Judicial Department on September 30, 2008.
[2]. This section is applicable to “extensions of time generally” yet claimant does not identify what rule or statute he seeks to extend. If it is an extension of the statute of limitations that is sought, Courts are prohibited generally from such extension [see Civil Practice Law and Rules §201].
[3]. This section provides relief from a judgment or order when the movant establishes grounds stated therein. Claimant has not established such grounds.
[4].Benjamin v State of New York, Claim No. 115343, Motion No. M-76765, UID # 2009-030-539 (Scuccimarra, J., July 20, 2009; 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).