Bramble v. State

54 A.D.3d 1138, 864 N.Y.S.2d 223

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 25, 2008
• Status: Published

Opinion

Kane, J.

Appeal from an order of the Court of Claims (Sise, EJ.), entered August 6, 2007, which, upon reconsideration, adhered to its prior decision denying claimant’s application for permission to file a late notice of claim.

Claimant, while a prison inmate, tested positive for herpes simplex I and II and was provided medication until his eventual release from custody. According to claimant, he thereafter tested negative for the condition. As a result, claimant subsequently sought permission to file a late notice of claim against defendant alleging medical malpractice. The Court of Claims denied that application, prompting claimant to move for reargument.

* The court, in turn, granted reargument and adhered to its original decision. This appeal from only the latter order ensued.

We affirm. It is not disputed that on November 28, 2006, defendant served upon claimant the original order of the Court of Claims denying permission to serve a late notice of claim, together with notice of entry. Claimant, however, did not move for what was properly determined by the Court of Claims to be reargument until April 2, 2007, long after the time in which he had to make such a motion had expired (see CPLR 2221 [d] [3]; 2103 [b] [2]). Consequently, claimant’s motion for reargument was untimely and should have been denied as such (see Selletti v Liotti, 45 AD3d 668, 669 [2007]).

Cardona, P.J., Carpinello, Rose and Kavanagh, JJ., concur. Ordered that the order is affirmed, without costs.

Although claimant referred to his motion as one for renewal, in actuality, it was a motion for reargument inasmuch as it did not assert any new or previously unknown facts (see Matter of Ruiz v Kuhlmann, 268 ÁD2d 621 [2000]).