Movant's seek leave to renew their prior motion for permission to late file a claim based upon newly discovered evidence pursuant to CPLR 2221 (e). The Court denies this motion, finding no new facts that would change prior determination and all of the factors set forth in Court of Claims Act 10 (6) weigh against granting leave to late file a claim.
|Claimant(s):||HAROLD W. BURTON and BARBARA O'REILLY|
|Claimant short name:||BURTON|
|Footnote (claimant name) :|
|Defendant(s):||STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||J. DAVID SAMPSON|
|Claimant's attorney:||THE O'BRIEN FIRM, P.C.
BY: Christopher J. O'Brien, Esq.
|Defendant's attorney:||HON ERIC T. SCHNEIDERMAN
New York State Attorney General
BY: Michael T. Feeley, Esq.
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||December 19, 2017|
|See also (multicaptioned case)|
Movants Harold W. Burton and his wife, Barbara O'Reilly, move this Court for leave to renew their prior motion for permission to late file a claim based upon newly discovered information.(1) By its prior decision and order, this Court denied movants late claim relief (see Burton v State of New York, UID No. 2017-053-510 [Ct Cl, Sampson, J., March 28, 2017], copy annexed to the opposing affidavit of Assistant Attorney General Michael T. Feeley as Exhibit C). Defendant opposes movants' motion to renew.
This motion requests leave to renew a prior motion arising out of injuries sustained by movant Harold W. Burton on September 4, 2015, when he fell off his bicycle after he struck a pothole in the bike path on Sweet Home Road in the Town of Amherst. Pursuant to CPLR 2221 (e), a motion for leave to renew a prior motion is to be based on new facts not offered on the prior motion that would change the outcome of the prior motion or be based on a change in the law that would change the outcome of the prior motion and shall contain reasonable justification as to why the new facts were not presented on the prior motion. A motion to renew cannot be used to remedy the failure to include evidence which, with due diligence, could have been produced at the time of the original motion (Kahn v Levy, 52 AD3d 928 [3d Dept 2008]).
Movants do not argue that there has been a change in the law. Rather, counsel for the movants avers in his affirmation dated August 29, 2017, that after this Court's prior decision denying late claim relief was released, he sought additional information from the Town of Amherst and from the State via FOIL requests and learned that the State had repaired the pothole on September 4, 2015, the date of the incident. According to movants' counsel, this new information had not been previously disclosed as neither party was aware that the pothole had been repaired after regular hours on the day of the accident and not on September 5, 2015, the day after the accident as originally alleged by movants (see ¶¶ 26-28 of the August 29, 2017 affirmation of Christopher J. O'Brien, Esq. and ¶ 6 of the affidavit of Assistant Attorney General Michael T. Feeley sworn to October 4, 2017).
This new information is contained in movants' exhibit J which is a printout report from MAMIS (New York State Department of Transportation Maintenance Asset Management Information System). According to the comment section of this report, " bicycle struck pothole on NY 952T South in bike lane and fell over into low speed lane." Nothing in this report indicates that anyone had been injured by this pothole and as a result, no photographs or measurements were taken (see affidavit of Joseph T. Jowsey sworn to October 3, 2017 [defendant's exhibit A]; and affidavit of Paul Uebelhoer sworn to October 3, 2017 [defendant's exhibit B]).
Movants have offered no new facts that would change the Court's prior determination denying late claim relief as all of the factors to be considered on a late claim motion brought pursuant to Court of Claims Act § 10 (6) still weigh against granting late claim relief. Claimant has not shown there to be a reasonable excuse for the delay in filing the claim. There is still no evidence to suggest that the State created the pothole or had actual or constructive notice of its existence, or that the State had notice or an opportunity to investigate as there was no accident report and no notice of an injury accident. It also still remains that the State would be prejudiced as the location of the pothole was repaved in August 2016, eliminating any possibility that the patch could be removed to examine and take measurements of the size and depth of the pothole. Finally, it does not appear that this new information could not have been discovered and presented at the time of the previous motion.
Based on the foregoing, movants' motion no. M-91044 to renew their prior motion for leave to late file a claim is denied.
December 19, 2017
Buffalo, New York
J. DAVID SAMPSON
Judge of the Court of Claims
The following were read and reviewed by the Court:
1. Notice of motion to renew and affirmation of Christopher J. O'Brien, Esq. dated August 29, 2017, with annexed Exhibits A-K;
2. Affidavit of Harold W. Burton sworn to on January 13, 2017 in support of movants' original motion; and
3. Affidavit in response of Assistant Attorney General Michael T. Feeley sworn to on October 4, 2017, with annexed Exhibits A-C.
1. In their motion papers, movants attempt to reargue their entire prior motion for leave to file a late claim. Movants' notice of motion, however, makes it clear that their motion solely seeks permission to "Renew a Claim upon the State of New York." Thus, this motion has been addressed solely as a motion to renew pursuant to CPLR 2221 (e).