Dipolito v. State of New York

Opinion

Dipolito v State of New York

2026 NY Slip Op 04837

August 5, 2026

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This decision is uncorrected and subject to revision before publication in the Official Reports.

Jeanne E. Dipolito, etc., et al., appellants,

v

State of New York, respondent. (Claim No. 130965)

Supreme Court of the State of New York, Appellate Division, Second Judicial Department

Decided on August 5, 2026

2023-06896

Lara J. Genovesi, J.P.

Linda Christopher

Janice A. Taylor

Donna-Marie E. Golia, JJ.

Giuliano McDonnell & Perrone, LLP, Mineola, NY (Joseph J. Perrone and Timothy McDonnell of counsel), for appellants.

Letitia James, Attorney General, New York, NY (Judith N. Vale and Cleland B. Welton II of counsel), for respondent.

[*1]

DECISION & ORDER

In a claim to recover damages for personal injuries, the claimants appeal from an order of the Court of Claims (Gina M. Lopez-Summa, J.), dated March 13, 2023. The order denied the claimants' motion for leave to renew their opposition to the defendant's prior motion for summary judgment dismissing the claim, which had been granted in an order of the same court dated July 30, 2021.

ORDERED that the order dated March 13, 2023, is affirmed, with costs.

In February 2017, the claimants served a notice of intention to file a claim on the defendant. Thereafter, in February 2018, the claimants commenced this claim asserting causes of action sounding in negligence. The claim alleged that in November 2016 the claimants were onboard a 41-foot motor vessel navigating within the marked channel in Sea Dog Creek, "in the general vicinity of Point Lookout, New York," when the vessel "suddenly and violently ran hard aground," causing injuries. The claim described Sea Dog Creek as "a navigable waterway approximately located just north of Alder Island and just south of Sea Dog Island and High Meadow Island" and that "[s]aid place is approximately one half (½) mile north of Point Lookout, New York." In March 2018, the defendant interposed an answer asserting certain affirmative defenses, including that the claimants failed to include an adequate description of the location of the accident as required by Court of Claims Act § 11(b).

Thereafter, the defendant moved for summary judgment dismissing the claim. In an order dated July 30, 2021, the Court of Claims granted the motion. Thereafter, the claimants moved for leave to renew their opposition to the defendant's prior motion. In an order dated March 13, 2023, the court denied the claimants' motion. The claimants appeal from the order dated March 13, 2023.

A motion for leave to renew "shall be based upon new facts not offered on the prior motion that would change the prior determination or shall demonstrate that there has been a change in the law that would change the prior determination" (CPLR 2221[e][2]) and "shall contain reasonable justification for the failure to present such facts on the prior motion" (CPLR 2221[e][3]). [*2]"[A] motion for leave to renew is not a second chance freely given to parties who have not exercised due diligence in making their first factual presentation" (Matter of Polak v MTA Long Is. R.R., 230 AD3d 500, 503 [internal quotation marks omitted]; see Maher v WP Galleria Realty, LP, 241 AD3d 813, 815).

"Pursuant to Court of Claims Act § 11(b), a notice of intention to file a claim and a claim must set forth, inter alia, the place where such claim arose" (Constable v State of New York, 172 AD3d 681, 682 [internal quotation marks omitted]). "A failure to comply with the requirements set forth in section 11(b) of the Court of Claims Act is a jurisdictional defect compelling the dismissal of the claim" (Laignelet v State of New York, 205 AD3d 795, 795-796). Although Court of Claims Act § 11(b) "does not require absolute exactness, it requires a statement made with sufficient definiteness to enable the State to be able to investigate the claim promptly and to ascertain its liability under the circumstances" (Martinez v State of New York, 215 AD3d 815, 816 [internal quotation marks omitted]; see Lepkowski v State of New York, 1 NY3d 201, 208).

Here, the claimants failed to offer new facts that would have changed the prior determination (see Harway Terrace, Inc. v Shlivko, 220 AD3d 927, 928; Amtrust-NP SFR Venture, LLC v Thompson, 181 AD3d 762, 765; see also Lunati v State of New York, 241 AD3d 531, 533). Accordingly, the Court of Claims properly denied the claimants' motion for leave to renew their opposition to the defendant's prior motion for summary judgment dismissing the claim.

The claimants' remaining contentions either are without merit or need not be reached in light of the foregoing.

GENOVESI, J.P., CHRISTOPHER, TAYLOR and GOLIA, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court