Claimant's motion for renewal of prior motions is denied where renewal motion lacks merit.
|Claimant(s):||MARK ALAN LAPIERRE|
|Claimant short name:||LAPIERRE|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||FRANK P. MILANO|
|Claimant's attorney:||MARK ALAN LAPIERRE
|Defendant's attorney:||HON. LETITIA JAMES
New York State Attorney General
By: Michael T. Krenrich, Esq.
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||October 29, 2019|
|See also (multicaptioned case)|
Claimant moves for renewal of his prior motions (M-90642, requesting dismissal of defendant's affirmative defenses; and CM-91061, requesting sanctions and granting claimant summary judgment) which were denied by the Court's Decision and Order, filed December 12, 2017 (Lapierre v The State of New York, UID# 2017-041-081, Claim No. 123678, Motion Nos. M-91023, M-90803, M-90642, M-91016, M-90641, Cross-Motion Nos. CM-90960, CM-91061 [Milano, J., signed November 14, 2017).
Defendant opposes the claimant's renewal motion.
The Court's prior Decision and Order held, at relevant part, as follows:
"The defendant's motion to dismiss the claim's causes of action for medical negligence and deliberate indifference accruing at Downstate Correctional Facility and Marcy Correctional Facility (M-91016) is granted, because the time to interpose those causes of action in the claim was not extended by the claimant's service of a notice of intention to file a claim.
Claimant's cross-motion for 'partial summary judgment of jurisdiction and imposition of sanctions' (CM-91061) is denied because no legal or factual basis for the relief requested is established in claimant's supporting papers."
A motion to renew "shall be based upon new facts not offered on the prior motion that would change the prior determination . . . [and] shall contain reasonable justification for the failure to present such facts on the prior motion" (CPLR 2221 [e]  and ). Further, "[r]enewal is not a means by which to remedy the failure to present evidence which, with due diligence, could have been produced at the time of the original motion" (Kahn v Levy, 52 AD3d 928, 930 [3d Dept 2008]).
Claimant's renewal motion asserts a new accrual date, contrary to the accrual date claimant set forth in his claim, for his dismissed causes of action. Claimant argues that his personal injury causes of action (medical malpractice and deliberate indifference to claimant's medical needs) did not accrue until he exhausted his inmate grievance remedy regarding the alleged acts and/or omissions of defendant set forth by claimant in the dismissed causes of action. Claimant's argument fails.
Claimant's causes of action for medical negligence and deliberate indifference to claimant's medical needs accrued at the time the acts and/or omissions occurred (Goldsmith v Howmedica, Inc., 67 NY2d 120, 122 : "The general rule is that an action accrues and the Statute of Limitations begins to run at the time of the commission of the alleged malpractice").
Claimant was under no obligation to exhaust an administrative remedy prior to serving his claim alleging personal injury causes of action for medical negligence and deliberate indifference to claimant's medical needs.
Claimant has offered no new facts in admissible form which would change the prior determination and, assuming such admissible facts had been offered, has provided no "reasonable justification for the failure to present such facts on the prior motion" (CPLR 2221 [e] ).
For all of the foregoing reasons, the claimant's motion is denied.
October 29, 2019
Albany, New York
FRANK P. MILANO
Judge of the Court of Claims
1. Claimant's Notice of Motion to Renew Decision and Order on Prior Motions, filed September 25, 2019;
2. Affidavit of Mark A. LaPierre, sworn to September 22, 2019, and attached exhibits;
3. Affirmation in Opposition of Michael T. Krenrich, dated October 9, 2019;
4. Affidavit in Reply of Mark A. LaPierre, sworn to October 13, 2019.