New York State Court of Claims

New York State Court of Claims
LIEBER v. THE STATE OF NEW YORK, # 2010-009-029, Claim No. 112166, Motion No. M-78406


Claimant's motion seeking leave to reargue a prior motion was denied.

Case information

UID: 2010-009-029
Claimant(s): DARLEEN LIEBER and ROBERT LIEBER, Individually and as Parents and Natural Guardians of JORDAN LIEBER, an Infant over the age of Fourteen Years
Claimant short name: LIEBER
Footnote (claimant name) :
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 112166
Motion number(s): M-78406
Cross-motion number(s):
Claimant's attorney: RIEHLMAN, SHAFER & SHAFER
BY: Jane G. Kuppermann, Esq.,
Of Counsel.
Defendant's attorney: HON. ANDREW M. CUOMO
Attorney General
BY: Senta B. Siuda, Esq.,
Assistant Attorney General
Of Counsel.
Third-party defendant's attorney:
Signature date: October 4, 2010
City: Syracuse
Official citation:
Appellate results:
See also (multicaptioned case)


Claimants have brought this motion pursuant to CPLR 2221 seeking leave to reargue a prior motion (M-77212) brought before this Court.(1)

The following papers were considered by the Court in connection with this motion:

Notice of Motion, Affidavit of Jane G. Kuppermann, Esq., with Exhibit, Memorandum of Law 1,2,3

Affirmation (in Opposition) of Senta B. Siuda, Esq., Assistant Attorney General 4

Reply Affidavit of Jane G. Kuppermann, Esq. 5

In this claim, claimants seek damages for injuries suffered by Jordan Lieber during a surgical procedure performed on May 9, 2005 by Dr. Jyoti J. Upadhyay at University Hospital in Syracuse. Immediately following this surgery, Jordan Lieber was diagnosed with bilateral lower leg compartment syndrome, requiring emergency compartment release fasciotomies.

In a prior motion (M-77212), claimants sought an order granting them summary judgment on the issue of liability. In a Decision and Order dated April 1, 2010, this Court denied the motion for summary judgment, finding that there were material questions of fact as to what actually transpired during the surgery. The Court further determined that negligence against the State could not be inferred based solely on the outcome of this surgical procedure, and therefore did not accept claimants' contention that the doctrine of res ipsa loquitur should be applied in this case.

In the instant motion, claimants contend that this Court misapprehended the liability of the State for the negligent actions of its employees, and that claimants are entitled to summary judgment as a matter of law under the res ipsa loquitur doctrine.

A motion to reargue 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." (Foley v Roche, 68 AD2d 558, 567; CPLR 2221[d]).

Essentially, claimants contend that the compartment syndrome which developed in Jordan Lieber's lower legs during the surgery is an event that would not occur in the absence of negligence, and therefore negligence can be reasonably inferred, establishing liability under the doctrine of res ipsa loquitur. Claimants also rely upon the affidavit of their medical expert, Jay Copeland, M.D., submitted with the original motion, who concluded that the compartment leg syndrome occurred as a result of negligence during the course of this surgery.

As previously stated in its prior Decision and Order, this Court found that this case was "not the rare medical malpractice case which can be determined upon the doctrine of res ipsa loquitur." (Decision and Order to Motion No. M-77212, page 7). In essence, this Court was unwilling to infer negligence against the State based solely upon the outcome of this surgical procedure. Based upon conflicting medical expert opinions, this Court denied claimants' prior motion for summary judgment.

In this application, claimants have not established that this Court overlooked or misapprehended any facts or law in reaching that determination, but rather have expounded upon the same legal arguments which were made in their original motion for summary judgment.

A motion to reargue is not casually granted, since it is not a tool to "afford an unsuccessful party successive opportunities to reargue issues previously decided...." (Matter of Mayer v National Arts Club, 192 AD2d 863, 865). Here, claimants have made no showing to indicate that the Court overlooked any facts or law originally presented that warrants reargument of this Court's prior Decision and Order.

Accordingly, based upon the foregoing, it is

ORDERED, that Motion No. M-78406, seeking leave to reargue, is hereby DENIED.

October 4, 2010

Syracuse, New York


Judge of the Court of Claims

1. Although the motion is noticed as one seeking leave to renew and reargue, claimants, in the papers before the Court, seek leave to reargue only.