Claimant's motion for reargument denied.
|Claimant(s):||HUGO E. LA ROSA|
|Claimant short name:||LA ROSA|
|Footnote (claimant name) :|
|Defendant(s):||STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||CHRISTOPHER J. McCARTHY|
|Claimant's attorney:||Hugo E. La Rosa, #075-808-707, Pro Se|
|Defendant's attorney:||ERIC T. SCHNEIDERMAN
Attorney General of the State of New York
By: Belinda A. Wagner, Esq., AAG
|Third-party defendant's attorney:|
|Signature date:||May 8, 2018|
|See also (multicaptioned case)|
For the reasons set forth below, Claimant's Motion pursuant to CPLR 2221(a), for reargument of this Court's prior Decision and Order granting Defendant's motion to dismiss (LaRosa v State of New York, UID No. 2017-040-148 [Ct Cl, McCarthy, J., Dec. 13, 2017]), is denied.
This pro se Claim, which was filed with the office of the Clerk of the Court on December 7, 2015, asserts that, while Claimant was incarcerated at Franklin Correctional Facility (hereinafter, "Franklin") from 2014 through 2015, he was subjected to medical mistreatment and malpractice by the facility's medical department. An electrical "[neuro] stimulator" was surgically implanted in Claimant's back in 2009. It is alleged that, in 2003, his surgeon warned Claimant to never let any doctor perform any tests where electrical devices were applied. Claimant asserts that he advised Franklin's medical staff of this and they performed tests on him using electrical devices, which caused damage to the unit that was previously installed in his back (Claim, ¶ 2). It is further alleged that the Claim accrued on August 26, 2015 (id., ¶ 4) and that Claimant served a Notice of Intention upon Defendant on November 24, 2015 (id., ¶ 5). However, the Court notes that the Notice of Intention attached to the filed Claim is dated December 2, 2015.
Defendant made a pre-Answer motion to dismiss the Claim. The Court reviewed the Claim that Claimant filed with the Clerk of the Court of Claims on December 7, 2015 and the Claim attached to Defendant's Motion papers as Exhibit C, which was served on Defendant on July 27, 2017. The Court determined that the pleading served cannot be deemed a copy of the claim that was filed (Van Buskirk v State of New York, 22 Misc 3d 953, 957 [Ct Cl 2008]). The Court determined that the contents of the two documents include materially different factual recitations of the acts or omissions from which the Claim arises and the injuries claimed to have been sustained. In addition, the Claim filed with the Court asserts that the Claim accrued on August 26, 2015, and that a Notice of Intention was served upon Defendant on November 24, 2015. The Claim served upon Defendant on July 27, 2017, by contrast, alleges an accrual date of November 14, 2014 and that a Notice of Intention was served upon Defendant on June 1, 2015. Another significant deviation or inconsistency, which the Court concluded could not be overlooked, is that different sets of documents are annexed to each Claim (see Hardy v State of New York, UID No. 2007-034-554 [Ct Cl, Hudson, J., Jan. 4, 2008]). The Court further found that Claimant failed to establish that a Notice of Intention was served upon Defendant on or about November 24, 2015 as asserted in the Claim that was filed December 7, 2015, or that the Claim was served in a timely manner in accordance with Court of Claims Act § 10(3). Furthermore, Claimant did not dispute that a different document was served upon the Attorney General than the Claim that was filed with the office of the Clerk of the Court of Claims.
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 (Matter of Anthony J. Carter, DDS, P.C. v Carter, 81 AD3d 819, 820 [2d Dept 2011]; Adderley v State of New York, 35 AD3d 1043, 1043 [3d Dept 2006]). 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 ; Matter of Anthony J. Carter, DDS, P.C. v Carter, supra at 820). If such a motion contains new proof, it is a "renewal" motion, rather than a "reargument" motion, and should be treated as such (Connors, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C2221:7 at 282; CPLR C2221:9 at 287). An application for leave to renew must be based upon newly discovered material facts that existed at the time the prior motion was made but which were not then known to the party seeking leave to renew, as well as a justifiable excuse for failing to present such facts to the Court in connection with the initial motion (Trump on the Ocean, LLC v State of New York, 79 AD3d 1325, 1326-1327 [3d Dept 2010]; Tibbits v Verizon N.Y., Inc., 40 AD3d 1300, 1302-1303 [3d Dept 2007]).
As Claimant's Motion contains no new proof, the Court considers the Motion to be one for reargument rather than renewal.
Upon a review of Claimant's motion papers and the Court's Decision upon the original motion, and upon due deliberation, the motion for reargument is denied as Claimant has failed to allege or establish that the Court overlooked or misapprehended the relevant facts or misapplied the controlling principle of law (Adderley v State of New York, supra; Matter of Anthony J. Carter, DDS, P.C. v Carter, supra).
Based upon the foregoing, Claimant's Motion is denied.
May 8, 2018
Albany, New York
CHRISTOPHER J. McCARTHY
Judge of the Court of Claims
The following papers were read and considered by the Court on the motion for reargument:
Notice of Motion, Affidavit & Exhibits attached 1
Affirmation in Opposition 2
Filed Papers: Claim