Opinion
25992/08.
Decided May 18, 2011.
Mily Basch on behalf of Amram Cohen, pro se; Pro Se Plaintiff.
Defendant was represented by Julie Rubenstein, Esq., New York City Law Department, Office of the Corporation Counsel, Brooklyn, New York.
This is an action to recover damages for personal injuries and property damage allegedly sustained by Plaintiff, AMRAM COHEN, when he was arrested by the Police. Plaintiff is believed to be presently residing out of the country pursuant to an Immigration Deportation Order. Pursuant to a Power of Attorney, approved by Judge Robert Miller, MILY BASCH has appeared and filed numerous pleadings in this matter on behalf of Plaintiff as his non-legal representative. The instant motion to renew or reargue was filed by Mily Basch on February 17, 2011.
The alleged incident occurred on February 26, 2008. Plaintiff filed a Notice of Claim on March 19, 2009. On December 23, 2009, this Court dismissed Plaintiff's claims for failure to file a timely Notice of Claim. Plaintiff filed a motion to reargue the December 23, 2009 dismissal Order. Said motion was denied on April 16, 2010. Plaintiff then filed a similar motion to renew and reargue which the Court denied on September 17, 2010. Shortly thereafter, Plaintiff, sought to seek the same relief by filing an Order to Show Cause which this Court declined to sign. Thereafter, Plaintiff filed a motion for leave to appeal in the Appellate Division, Second Department which motion was denied by Court Order dated February 9, 2011.
Now, once again, for the third time, Plaintiff, two days after denial of his leave to appeal by the Appellate Division, Second Department, has filed another motion seeking the identical relief, to renew or reargue, which has been repeatedly denied.
In this action, Plaintiff was allegedly injured on February 26, 2008. Pursuant to General Municipal Law (GML) § 50-e, which requires that a Notice of Claim be served within ninety (90) days after the accrual of the claim, which is a condition precedent to the commencement of a tort action against a municipality, (see Laroc v City of New York , 46 AD3d 760 , 760; White v New York City Hous. Auth. , 38 AD3d 675 , 675; Maxwell v City of New York , 29 AD3d 540 , 541), Plaintiff was required to serve a Notice of Claim on or before May 26, 2008. However, Plaintiff did not serve a Notice of Claim until March 19, 2009, approximately 11 months after the expiration of the 90 day statutory period.
It is well settled law, that once the 90 day period has passed, a Plaintiff must make an application to the Court to file a late Notice of Claim (GML § 50-e(5)). Said application must be made within one year and ninety days after the happening of the event upon which the claim is based. The Court will then weigh several factors and determine if Plaintiff should be granted permission to file the late Notice of Claim. In exercising its discretion to extend the time to file a late Notice of Claim, the Court must focus on whether the movant demonstrates a reasonable excuse for its failure to file a timely Notice of Claim, whether the municipality acquired actual knowledge of the essential facts constituting the claim within ninety (90) days from its accrual or a reasonable time thereafter, and whether the delay would substantially prejudice the municipality in maintaining its defenses on the merits ( see GML § 50-e; Education Law § 3813 (2-a); see also Acosta v City of new York, 39 AD3d 629, 630 [2d Dept 2007]; Rabanar v City of Yonkers, 290 AD2d 428, 429 [2d Dept 2002]; Christoforatos v City of New York, 285 AD2d 622 [2d Dept 2001]; Hobgood v New York City Hous. Auth., 253 AD2d 555 [2d Dept 1991]). Here, Plaintiff never made an application to be granted the right to file a late Notice of Claim. Therefore, the Court cannot exercise its discretion whether to extend the time for Plaintiff to file a late Notice of Claim. The Court cannot take it upon itself to grant a remedy which was never sought. ( see Distel v County of Ulster, 107 AD2d 994 ), nor does the Court have the discretion to lengthen or shorten the statutory time requirement.
Plaintiff, through his non-legal representative, has brought this motion for the third time asking the Court to grant him permission to renew or reargue the December 23, 2009, Dismissal Order. Assuming arguendo that this is the first time that Plaintiff is seeking this relief, pursuant to CPLR § 2221(d), a motion to reargue "shall be based upon matters of fact or law allegedly overlooked or misapprehended by the Court in determining the prior motion." On a motion to reargue, it is within the Court's discretion to grant the motion when it appears the Court may have overlooked certain facts in its initial Order or misapprehended the law ( see Mazzei v Licciardi, 47 AD3d 774 [2d Dept 2008]). In the instant matter, Plaintiff fails to establish that the Court either overlooked facts contained within the initial motions or misapprehended the law. Plaintiff does not provide any additional arguments or facts in his affidavit in support of his motion to renew or reargue ( see CPLR § 2221[d]), nor does he state what facts or law the Court overlooked or misapprehended when deciding the previous motions. The Court is cognizant of the fact that both the Plaintiff and his representative are pro se. While the Court may sympathize with the Plaintiff concerning his legal plight, and may extend some leniency to a pro se litigant who makes technical mistakes ( see Du-Art Film Laboratories, Inc. v Wharton Intern. Films Inc., 91 AD2d 572) a pro se litigant acquires no greater rights or special leniency than any other litigant ( see Walter v Jones Sledzik, Garneau Nardone, LLP, 67 AD3d 671, Roundtree v Singh 143 AD2d 9905).
Lastly, this is the third time that Plaintiff has sought the same relief before this Court, and each time, after oral argument, his motion was denied. The Court deem this present motion to be meritless, duplicative and frivolous. The Court has the power and duty to protect Courts, citizens and opposing parties from the deleterious impact of repetitive unfounded pro se litigation ( see Muka v New York State Bar Association, 120 Misc 2d 897 (Tompkins County 1983). Additionally, the Court has the power to enjoin pro se litigants from continuing further actions when those litigants are abusing the judicial process.(see, e.g., Eismann v Miller, 101 Idaho 692, supra; [***16] Rudnicki v McCormack, 210 F. Supp 905, 911.
Based on the history of this case, the Court has no doubt, that this Plaintiff will petition this Court, once more, to seek the same relief which has been repeatedly adjudicated and denied. Therefore, to avoid further, frivolous, litigation the Court finds it necessary to enjoin the Plaintiff and/or his non-legal representative, MILY BASCH or any other individual or individuals who may appear on behalf of the Plaintiff, from commencing any new actions without first obtaining leave of the Court.
Accordingly, it is the Decision and Order of this Court that Plaintiff's motion to renew or reargue is hereby denied and Plaintiff and/or his non-legal representative MILY BASCH, or any other legal or non-legal representative appearing on Plaintiff's behalf, is hereby enjoined from filing further actions before this Court regarding this subject matter without first obtaining Court approval.
This constitutes the Decision and Order of the Court.