|Claimant short name:||ZOSYA|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||RICHARD E. SISE|
|Claimant's attorney:||MARINA ZOSYA, PRO SE|
|Defendant's attorney:||HON. LETITIA JAMES, ATTORNEY GENERAL
BY: No Appearance
|Third-party defendant's attorney:|
|Signature date:||September 23, 2020|
|See also (multicaptioned case)|
The following papers were read on Claimant's motion to reargue pursuant to CPLR 2221:
1. Motion for Reargument filed February 3, 2020 with Exhibits annexed;
2. Affidavit of Marina Zosya sworn to January 29, 2020 with Exhibit annexed.
Filed papers: Decision and Order, December 5, 2019, Lynch, J.
Claimant has moved pursuant to CPLR 2221 to reargue a decision of the court denying her application for leave to late file a claim. The proposed claim, not included with the papers submitted on this motion, apparently involves a slip and fall at Albion Correctional Facility. Liability is based on defendant's failure to maintain its property in a reasonably safe condition as well as defendant's failure to provide the inmate claimant with appropriate footwear. The prior motion was denied after the court determined that the excuse for the delay in filing, ignorance of the law, was not acceptable and that claimant had failed to show that the proposed claim had an appearance of merit. The court in reviewing the papers submitted found that there was no evidence that the State had notice of the alleged dangerous condition and that there was an appropriate process in place for claimant to have exchanged her boots if they were old or worn.
A motion for leave to reargue "shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion, but shall not include any matters of fact not offered on the prior motion" (CPLR 2221 [d] ) and must "be made within thirty days after service of a copy of the order determining the prior motion and written notice of its entry." (CPLR 2221 [d] ).
Here, claimant has not pointed to any matters overlooked or misapprehended by the court in reaching its prior decision. Rather, in her affidavit in support of this motion, claimant attempts to provide an acceptable excuse and to show that defendant had notice of the alleged dangerous condition. Claimant also argues that the boot exchange process relied on by the court would not have provided her with new footwear under the circumstances then existing. These arguments could have been made on the prior motion either in the original moving papers or in reply to defendant's papers in opposition. "Reargument, [however], is not designed to afford the unsuccessful party successive opportunities to reargue issues previously decided or to present arguments different from those originally asserted" (Matter of Setters v AI Props. & Devs. (USA) Corp., 139 AD3d 492, 492 [1st Dept 2016] [citation omitted]). Inasmuch as claimant has not presented matters appropriate to a motion to reargue, the application should be denied.
Accordingly, it is
ORDERED, that the motion is denied.
September 23, 2020
Albany, New York
RICHARD E. SISE
Judge of the Court of Claims