New York State Court of Claims

New York State Court of Claims

MALIK v. THE STATE OF NEW YORK, #2009-038-544, Claim No. 112655, Motion No. M-76293


Synopsis


Claimant’s motion to reargue/renew motion for default judgment that was denied is denied. The arguments submitted in support of the motion do not demonstrate that the Court overlooked or misapprehended controlling facts or law, or that there are new facts or a change in the law that would require a different result (CPLR 2221).

Case Information

UID:
2009-038-544
Claimant(s):
ABDUL-JABBOR MALIK
Claimant short name:
MALIK
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
112655
Motion number(s):
M-76293
Cross-motion number(s):

Judge:
W. BROOKS DeBOW
Claimant’s attorney:
ABDUL-JABBOR MALIK, Pro se
Defendant’s attorney:
ANDREW M. CUOMO, Attorney General of the State of New York
By: Glenn C. King, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
May 18, 2009
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

In this claim alleging medical malpractice, the Court previously denied claimant’s motion for a default judgment made pursuant to CPLR 3215(a) (see Malik v State of New York, UID # 2009-038-501, Claim No. 112655, Motion No. M-75570, DeBow, J. [Jan. 8, 2009]). Claimant now moves pursuant to CPLR 2221 to reargue and/or renew that motion. A motion for reargument (CPLR 2221[d]), is addressed to the discretion of the Court and is designed to afford a party an opportunity to establish that the Court overlooked or misapprehended the relevant facts or misapplied a controlling principle of law (Schneider v Solowey, 141 AD2d 813 [2d Dept 1988]; Foley v Roche, 68 AD2d 558 [1st Dept 1979]). Its purpose is not to serve as a vehicle to permit an unsuccessful party to argue once again the very questions previously decided (Fosdick v Town of Hempstead, 126 NY 651 [1891]; William P. Pahl Equip. Corp. v Kassis, 182 AD2d 22 [1st Dept 1992]). A motion to renew (CPLR 2221[e]), must be based on “new facts not offered on the prior motion that would change the prior determination or shall demonstrate that there has been a change in the law that would change the prior determination” (CPLR 2221[e][2]; Alexy v Stein, 16 AD3d 989 [3d Dept 2005]; Matter of Beiny v Wynyard, 132 AD2d 190 [1st Dept 1987], lv dismissed 71 NY2d 994 [1988]) and a litigant seeking permission to renew must present a “reasonable justification for the failure to present such facts on the prior motion” (CPLR 2221[e][3]; Bansbach v Zinn, 20 AD3d 629 [3d Dept 2005]).[1]

In his affidavit in support of the motion, claimant offers no new facts, and thus, the motion will be considered as a motion to reargue. Claimant’s arguments are primarily addressed to defendant’s opposition to the previous motion, and thus, are not properly offered on a motion to reargue as they could have and should have been submitted to the Court as a reply in the prior motion.
Claimant’s contentions that the Court erred by overlooking the standards of review set forth in Tewari v Tsoutsouras (75 NY2d 1 [1989]; see Malik Affidavit, ¶¶ 14-18), and that defendant’s time to answer claimant’s interrogatories should not have been extended because the Court did not consider certain criteria (see Tewari v Tsoutsouras, at 12) are arguments that were not set forth in claimant’s initial motion, and thus, this is a new argument not properly asserted in a motion to reargue.

Claimant’s correspondence dated April 12, 2009, which is apparently submitted on the instant motion, addresses defendant’s response to claimant’s interrogatories, the merits of the claim, and the existence of an independent cause of action. As such, it raises matters not properly presented on a motion to reargue and/or renew, and thus, does not support the instant motion.

Accordingly, it is

ORDERED, that Motion No. M-76293 is DENIED.

May 18, 2009
Albany, New York

HON. W. BROOKS DEBOW
Judge of the Court of Claims


Papers considered
:

(1) Claim No. 112655, filed August 18, 2006;

(2) Malik v State of New York, UID # 2009-038-501, decided January 8, 2009;

(3) Notice of Motion for Default Judgment, dated September 18, 2008;

(4) “Affirmation” of Abdul-Jabbor Malik, dated September 18, 2008, with exhibit;

(5) Affirmation of Glenn C. King, AAG, in Response to Claimant’s Motion for Default

Judgment, dated October 29, 2008;

(6) Notice of Motion by CPLR §§ 2221(d) & (e), dated February 1, 2009;

(7) “Affidavit” of Abdul-Jabbor Malik, dated February 1, 2009, with Memorandum of Law;

(8) Affirmation of Glenn C. King, AAG, in Opposition to Claimant’s Motion for Reargument

or Reconsideration, dated March 16, 2009, with Exhibit A;

(9) Correspondence of Abdul-Jabbor Malik, dated April 12, 2009, with Affidavit of Service, sworn to April 9, 2009.



[1]. The Court notes that the scope and purpose of the motions pursuant to CPLR 2221 should be well known to claimant (see Malik v State of New York, UID # 2007-028-562, Claim Nos. 112250, 112655, 112640, 112865, 112866, 113091, Motion No. M-72996, Sise, J. [July 16, 2007]).