Motion to reargue prior Decision and Order denying claimant's motion for partial summary judgment and for a stay of the trial pending appeal was denied as lacking in merit.
|Claimant short name:||FREEMAN|
|Footnote (claimant name) :|
|Defendant(s):||STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||FRANCIS T. COLLINS|
|Claimant's attorney:||MELVIN & MELVIN, PLLC
By: Erin M. Tyreman, Esq.
|Defendant's attorney:||Honorable Letitia James, Attorney General
By: Christopher J. Kalil, Esq., Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||May 26, 2021|
|See also (multicaptioned case)|
Claimant moves pursuant to CPLR 2221 (d) to reargue this Court's prior Decision and Order denying his motion for partial summary judgment on the issue of liability and, in the alternative, for a stay of the upcoming trial pursuant to CPLR 5519 (c) pending a determination of his appeal.
Claimant, a former inmate, was injured while engaged in a work program at Gouveneur Correctional Facility on July 2, 2015. Claimant alleges that at the time of the incident, he and other inmates were directed to remove heavy barrels of rock salt from the back of a truck. Claimant testified that as he was moving a barrel away from the tailgate, another inmate in the flatbed portion of the truck accidentally caused a barrel to fall from the truck onto the claimant's foot.
Claimant moved for partial summary judgment with respect to his cause of action alleging a failure to provide a safe place to work(1) , contending that the absence of appropriate tools or equipment to perform the work was the proximate cause of his accident. Claimant's motion was denied on the ground he failed to meet his burden of establishing a prima facie entitlement to summary judgment and, in any event, the affidavit offered in opposition to the motion raised material questions of fact requiring a trial. Specifically, the Court found that claimant's failure to proffer any proof as to the proper or customary procedure for unloading the barrels from the truck required denial of the motion on this basis alone. In addition, the affidavit from the supervising correction officer submitted in opposition to the motion indicated that the inmates performing the work were instructed not to unload the truck until he returned with a forklift. Thus, even if claimant established his entitlement to partial summary judgment, which he did not, denial of the motion was required.
A motion to reargue is addressed to the sound discretion of the Court and requires the moving party to demonstrate that the Court overlooked or misapprehended matters of fact or misapplied existing law to the facts presented (see CPLR, Rule 2221 [d] ; Peak v Northway Travel Trailers, 260 AD2d 840 [3d Dept1999]; Spa Realty Assoc. v Springs Assoc., 213 AD2d 781 [3d Dept 1995]). Such a motion does not serve as a vehicle to permit the unsuccessful party to argue once again the very questions previously decided (Foley v Roche, 68 AD2d 558, 567 [1st Dept 1979], lv denied 56 NY2d 507 ). Here, claimant failed to demonstrate that the Court overlooked or misapprehended matters of fact or misapplied existing law to the facts presented. Accordingly, claimant's motion to reargue is denied.
In addition, claimant failed to demonstrate a reasonable likelihood of success on appeal, and his request to stay the trial pending a determination of his appeal is therefore denied. Discretionary stays of an action pending the determination of an appeal are governed by CPLR § 5519 (c). As stated by the Court in Schaffer v VSB Bancorp, Inc. (68 Misc3d 827, 834 [Richmond County 2020] [inner quotation marks omitted]):
"there is no single factor in determining whether to grant a stay, the court's discretion is the guide and it will be influenced by any relevant factor, including the presumptive merits of the appeal and any exigency or hardship confronting any party" (quoting Deutsche Bank Natl. Trust Co. v. Royal Blue Realty Holdings, Inc., 2016 N.Y. Slip Op. 31510(U), 2016 WL 4194201 [N.Y. Sup. Ct. 2016]; Richard C. Reilly, Practice Commentaries McKinney's Cons Laws of NY, CPLR C:5519:4).
Here, the merit of the appeal does not warrant a stay of the trial and no exigent circumstances have been shown. Accordingly, this branch of the claimant's motion must be denied.Based on the foregoing, claimant's motion is denied.
May 26, 2021
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims
1. Notice of Motion dated April 19, 2021;
2. Attorney Affirmation dated April 19, 2021;
3. Affirmation in opposition dated May 4, 2021;
4. Reply Affirmation dated May 13, 2021.
1. Claimant also alleges the defendant failed to provide appropriate medical treatment.