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 (H.L.
v State of New York, Claim No. 113054, Motion Nos. M-74374, CM-74410,
September 17, 2008, McCarthy, J. [UID No. 2008-040-055]), is granted and, upon
reargument, that prior Decision and Order is modified as set forth below.
The instant Claim was filed with the Clerk of the Court on November 29, 2006.
The Claim alleges that Claimant was an inmate at Wallkill Correctional Facility,
located in Wallkill, New York (“Wallkill”), during the period
November 29, 2004 through April 2005, where he was sexually assaulted by a male
nurse employed at Wallkill. It is alleged that Defendant was negligent in the
hiring, training, supervision and control of the nurse.
In response to the Court’s prior motion Decision and Order, Defendant
provided the Court with copies of the nurse’s personnel file, as well as
the State Police and Inspector General files regarding this matter. Following
completion of its in camera review, the Court determined that Claimant
was entitled to discovery of various items. The State objects to certain items
that the Court directed be disclosed and seeks to reargue that portion of the
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 ). 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 ; 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
, rearg denied 81 NY2d 782 ). 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], appeal dismissed 71 NY2d 994 ).
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 affidavit 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 granted and, upon such
reargument, the Court’s prior Decision and Order is modified as
(1) Defendant should not make available to Claimant the five-page “Report
of Interview” dated March 18, 2005 (pp. 12-16 of the Inspector
General’s investigation file) and the two pages of Ambulatory Health
Records (pp. 32-33). The Court determines that Claimant has failed to
demonstrate “good cause” for the requested disclosure, or that its
application was upon notice to the non-party subject of those records as
required by Civil Rights Law § 50-b(2)(b) (see Doe v Riback, 7 Misc
3d 341, 344 [Sup Ct, Albany County, 2005]);
(2) any other record containing confidential medical information pertaining to
a non-party to this Claim shall be redacted so that no such information is
(3) the parties are directed to enter into a confidentiality agreement to
preclude Claimant from sharing any such records from the Inspector
General’s investigation file with any person who would not have access to
such records in the normal course of employment.
In all other respects, the Court adheres to its prior determination 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 granted and
the Court’s prior Decision and Order is modified only to the extent set
forth in the preceding paragraphs.