New York State Court of Claims

New York State Court of Claims

PAYTON v. THE STATE OF NEW YORK, #2009-040-023, Claim No. 111384, Motion No. M-76055


State’s motion pursuant to CPLR 2221(a) denied.

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:
BAUMAN & KUNKIS, P.C.By: Roger M. Kunkis, Esq.
Defendant’s attorney:
Attorney General of the State of New YorkBy: Daniel Chu, Esq., AAG
Third-party defendant’s attorney:

Signature date:
February 27, 2009

Official citation:

Appellate results:

See also (multicaptioned case)


For the reasons set forth below, the State’s motion pursuant to CPLR 2221(a), for reargument of this Court’s prior Decision and Order (Payton v State of New York, 21 Misc 3d 1143[A]), is denied.

The instant Claim was filed with the Clerk of the Court on September 16, 2005. The Claim alleges that, on September 24, 2004 between 4:00 a.m. and 6:30 a.m., Claimant, who was a patient at Stony Brook University Hospital and Medical Center, fell out of bed, causing her to sustain serious and permanent personal injuries as a result of Defendant’s negligence and medical malpractice.

Claimant’s prior motion for in camera review of the Patient Safety Net (PSN) report generated regarding the incident underlying this Claim was granted.

The Court stated:
“Defendant, by means of Dr. Greene’s Affirmation and Nurse Ferrara’s Affidavit, merely asserts in conclusory fashion that the privilege applies to the requested document without making any showing as to why the privilege attaches (Fray v Fulton Commons Care Center, Inc., 51 AD3d 968 [2d Dept 2008]; Ross v Northern Westchester Hosp. Assn., 43 AD3d 1135, supra at 1136). Thus, Defendant is to provide the document to the Court for an in camera inspection, together with its privilege log, if one exists, within forty-five (45) days of the date this Decision and Order is filed in the Office of the Clerk of the Court of Claims.” (Payton v State of New York, 21 Misc 3d 1143[A]).
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 the controlling principle of law (Schneider v Solowey, 141 AD2d 813 [2d Dept 1988]; Foley v Roche, 68 AD2d 558, 567 -568 [1st Dept 1979], appeal after remand 86 AD2d 887 [2d Dept 1982], appeal denied 56 NY2d 507 [1982]). 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, 652 [1891]; William P. Pahl Equip. Corp. v Kassis, 182 AD2d 22, 27 [1st Dept 1992]; lv dismissed in part, lv denied in part 80 NY2d 1005 [1992], rearg denied 81 NY2d 782 [1993]). If such a motion contains new proof, it is a “renewal” motion, rather than a “reargument” motion, and should be treated as such (Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C2221:7, at 182). An application for leave to renew must be based upon additional material facts which existed at the time the prior motion was made but which were not then known to the party seeking leave to renew and which, therefore, were not made known to the Court (Matter of Beiny v Wynyard, 132 AD2d 190, 209-210 [1st Dept 1987], lv dismissed 71 NY2d 994 [1988]).

As Defendant’s motion contains no new proof, the Court considers the motion to be one for reargument rather than renewal.

Upon a review of Defendant’s motion papers, counsel’s affirmation in support of the motion, Claimant’s counsel’s affirmation in opposition and the Court’s decision upon the original motion, and upon due deliberation, Defendant’s motion for reargument is denied because the Court finds that it properly applied the controlling principle of law and did not misapprehend the relevant facts.

Based upon the foregoing, therefore, Defendant’s motion is denied in its entirety.

February 27, 2009
Albany, New York

Judge of the Court of Claims

The following papers were read and considered by the Court on Defendant’s motion for reargument:

Papers Numbered

Notice of Motion, Affirmation in Support
& Exhibits attached 1

Affirmation in Opposition
& Exhibits attached 2

Filed Papers: Claim, Answer