Opinion
# 2016-038-516 Claim No. 124418 Motion No. M-87707
03-31-2016
SHAWN GREENv. STATE OF NEW YORK
SHAWN GREEN, Pro se ERIC T. SCHNEIDERMAN, Attorney General of the State of New York By: Joan Matalavage, Assistant Attorney General
Synopsis
Claimant's motion for reargument denied. No showing that Court overlooked or misapprehended matters of fact or law in denying claimant's motion for summary judgment. Claimant's motion was unsupported by sufficient evidence to bear his burden of demonstrating his entitlement to judgment as a matter of law, and he cited no authority for the proposition that the Court should have overlooked this omission pursuant to CPLR 2001 and/or considered evidence submitted by defendant in opposition to claimant's motion and in support of its cross motion for summary judgment.
Case information
| UID: | 2016-038-516 |
| Claimant(s): | SHAWN GREEN |
| Claimant short name: | GREEN |
| Footnote (claimant name) : | |
| Defendant(s): | STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 124418 |
| Motion number(s): | M-87707 |
| Cross-motion number(s): | |
| Judge: | W. BROOKS DeBOW |
| Claimant's attorney: | SHAWN GREEN, Pro se |
| Defendant's attorney: | ERIC T. SCHNEIDERMAN, Attorney General of the State of New York By: Joan Matalavage, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | March 31, 2016 |
| City: | Saratoga Springs |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant, an individual incarcerated in a State correctional facility, moves to reargue a prior decision and order of this Court, which denied claimant's motion for partial summary judgment and granted in part defendant's cross motion for summary judgment and dismissed five causes of action that contained allegations of medical malpractice (see Green v State of New York, UID No. 2015-038-540 [Ct Cl, DeBow, J., June 12, 2015]). Petitioner asserts that the Court erred in denying claimant's motion for lack of attached pleadings and affidavit support when those documents were attached to defendant's cross motion and because he was personally affected by and involved in every cause of action, and he further contends that the Court overlooked and/or failed to recite various factual matters. He contends that these errors and the denial of his motion and dismissal of several of his causes of action occurred because the Court is biased against him and in favor of defendant.
A motion for leave to reargue is addressed to the discretion of the Court, and such a motion "shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion" (CPLR 2221 [d][2]; see Schneider v Solowey, 141 AD2d 813 [2d Dept 1988]; Foley v Roche, 68 AD2d 558 [1st Dept 1979]). Such a motion does not permit an unsuccessful party to simply argue again the very questions previously decided (see Fosdick v Town of Hempstead, 126 NY 651 [1891]; Matter of Mehta v Mehta, 196 AD2d 841, 842 [2d Dept 1993]; William P. Pahl Equip. Corp. v Kassis, 182 AD2d 22 [1st Dept 1992]).
Claimant has failed to demonstrate that the Court overlooked or misapprehended any matter of fact or law in its initial decision. Claimant's motion for summary judgment was denied primarily because he failed to comply with CPLR 3212 (b), which requires a movant for summary judgment to append copies of the pleadings to the motion. It was further noted that even if the motion was not denied for noncompliance with CPLR 3212 (b), it would be denied because claimant failed to comply with the well-established principle that "the summary judgment movant bears the [initial and] heavy burden of establishing 'a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact' " (Deleon v New York City Sanitation Dept., 25 NY3d 1102, 1106 [2015] quoting Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). Claimant's position that his initial burden can be met by reliance on exhibits submitted by defendant in support of its cross motion for summary judgment and in opposition to claimant's motion is unsupported by authority, nor is authority offered in support of claimant's argument that his failure to append sufficient evidence to his motion is a technicality that may be overlooked pursuant to CPLR 2001.
Claimant further asserts that the Court misconstrued his third through seventh causes of action as sounding in medical malpractice and therefore erroneously granted defendant's cross motion due to the lack of expert proof by claimant. These causes of action have been reviewed, and inasmuch as they allege omissions, errors and failure of judgment in the course of defendant's treatment of claimant's diabetes, the Court is unpersuaded that it misconstrued the nature of those causes of action or that expert medical proof was not required to demonstrate that claimant was entitled to judgment as a matter of law on those causes of action. Further, claimant has failed to demonstrate that Dr. Schroyer lacks requisite skill and knowledge such that his affidavit should be deemed incompetent, or that his affidavit is conclusory or fails to set forth the applicable standard of medical care. In sum, the Court is not persuaded that it overlooked or misapprehended any facts or law in its prior decision, and accordingly, claimant's motion to reargue will not be granted. Accordingly, it is
ORDERED, that claimant's motion number M-87707 is DENIED.
March 31, 2016
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims Papers considered: (1) Motion for Reargument, dated November 2, 2015; (2) Statement of Shawn Green, sworn to November 2, 2015; (3) Affidavit of Joan Matalavage, AAG, in Opposition, sworn to January 4, 2016; (4) Reply of Shawn Green, sworn to January 8, 2016 (5) Decision and Order, Green v State of New York, filed October 13, 2015, and all papers considered therewith.