Claimant James Henderson seeks damages for personal injuries he alleges were caused by negligent dental care he received from Defendant, and also by the lack of informed consent, while an inmate at Eastern Correctional Facility operated by the Department of Correctional Services.^[FN1] By Decision and Order dated January 19, 2012, this Court denied Clamant's motion to compel arbitration, finding that it lacked subject matter jurisdiction to grant the equitable relief requested and that, in any event, the application would be denied based on the absence of an agreement to arbitrate (see Henderson v State of New York, UID No. 2012-048-027 [Ct Cl, [*2]Bruening, J., Jan. 19, 2012]). The Court also held, among other things, that, to the extent that Claimant's motion referenced CPLR 3212, Claimant failed to establish his prima facie entitlement to summary judgment based on the absence of proof of a departure from the accepted standard of medical care, and that such departure was a proximate cause of the injuries claimed (see McKenzie v Abrahams, 72 AD3d 758, 759 [2d Dept 2010]; Toomey v Adirondack Surgical Assoc., 280 AD2d 754, 755 [3d Dept 2001]). A trial of this action was held on July 25, 2012, after which the Court dismissed the Claim, concluding that Claimant failed to establish that Defendant's treatment of him deviated from any standard of dental care or that there was a lack of informed consent (see Henderson v State of New York, UID No. 2012-048-518 [Ct Cl, Bruening, J., Dec. 6, 2012]). Claimant now makes this motion requesting that the Court reconsider its prior Decision and Order of January 2012. Defendant opposes the motion.

Initially, the Court construes Claimant's motion as one seeking leave to renew or to reargue pursuant to CPLR 2221. "[A] motion for leave to reargue pursuant to CPLR 2221 is addressed to the sound discretion of the court and is properly granted upon a showing that the court overlooked or misapprehended the facts and/or the law or mistakenly arrived at its earlier decision" (Peak v Northway Travel Trailers, 260 AD2d 840, 842 [3d Dept 1999]; see CPLR 2221 [d] [2]). Such a motion "is not designed to afford an unsuccessful party successive opportunities to reargue issues previously decided or to present arguments different from those originally asserted" (Matter of Mayer v National Arts Club, 192 AD2d 863, 865 [3d Dept 1993]). A motion to renew, on the other hand, must be based upon " new facts not offered on the prior motion that would change the prior determination . . . and . . . reasonable justification for the failure to present such facts on the prior motion' " (Webber v Scarano-Osika, 94 AD3d 1304, 1305 [3d Dept 2012], quoting CPLR 2221 [e] [2], [3]).

In support of his motion, Claimant has filed a document entitled "Motion in Response to Denial of Summary Judgment," in which he argues the merits of his Claim and vaguely alludes to an arbitration agreement between the parties, the validity of which, Claimant asserts, this Court has the jurisdiction to determine. Claimant also submits an unsworn document entitled "Affidavit in Support," in which he states his intent to move this Court for an order "of arbitration [] pursuant to section 7503" and requests, among other things, that the Court "consider a settlement prior to trial in the interest of justice" (Claimant's "Affidavit," page 1). Finally, Claimant submits with his motion two documents, both entitled "Order Settling Claim," by which Claimant seeks, among other things, an Order settling this Claim for "$10.000 [sic] dollars." In opposition to Claimant's motion, Defendant argues that this Court does not have subject matter jurisdiction to compel arbitration and that "the State has not (and will not) agree to arbitration in this matter" (Affirmation of Joan Matalavage, Esq., paragraph 4). Defendant further argues that to the extent Claimant is seeking leave to reargue the denial of summary judgment, Claimant's motion is not supported by an affidavit outlining how the alleged malpractice occurred.

Whether seeking leave to reargue based on the denial of Claimant's motion seeking to compel arbitration or based on the denial of summary judgment, Claimant has failed to establish that the Court overlooked or misapprehended matters of fact or law in determining the prior motion (see Adderley v State of New York, 35 AD3d 1043, 1043 [3d Dept 2006]). Indeed, while Claimant, in his current motion, eludes to an "arbitration provision," no such document is [*3]appended to the motion papers (Motion in Response to the Denial of Summary Judgment, page 1). In any event, Claimant has failed to establish the Court erred in determining that it lacks subject matter jurisdiction to compel in this case, since the equitable relief sought is not incidental to the primary claim seeking to recover money damages (see e.g. Feuer v State of New York, 101 AD3d 1550, 1551 [3d Dept 2012]), or in determining that Claimant failed to establish his prima facie entitlement to summary judgment. Claimant's motion is likewise defective insofar as it may be deemed a motion for leave to renew. Claimant has not presented any newly discovered facts in support of his motion that would have changed the prior determination and/or any justification for not originally offering those facts (see Adderley v State of New York, 35 AD3d at 1044).

Accordingly, Claimant's Motion No. M-82272 is denied.

Albany, New York

January 25, 2013

GLEN T. BRUENING

Judge of the Court of Claims

The following papers were read and considered by the Court:

Document entitled "Motion in Response to Denial of Summary Judgment," filed August 31, 2012;

"Affidavit in Support," undated and unsworn;

Document entitled "Order Settling Claim," consisting of two pages;

Document entitled "Order Settling Claim," consisting of one page;

Affidavit of Joan Matalavage, Esq., sworn to on October 17, 2012, with Exhibit A.