New York State Court of Claims

New York State Court of Claims

HARVEY v. THE STATE OF NEW YORK, #2000-001-019, Claim No. 96808, Motion No. M-61057


Claimant's motion to set aside a prior decision and judgment for reconsideration and modification of relief is denied.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Susan Phillips Read
Claimant's attorney:
Carl G. Dworkin, Esq.
Defendant's attorney:
Hon. Eliot Spitzer, Attorney GeneralBy: Belinda A. Wagner, Esq., Assistant Attorney General
Third-party defendant's attorney:

Signature date:
June 1, 2000

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read and considered on claimant's motion for an order pursuant to CPLR 4404 (b), to set aside a prior decision and judgment in this action, reconsider the facts and conclusions of law contained therein, and issue a new decision and direct entry of judgment: Notice of Motion, dated January 11, 1999 (sic) and filed January 11, 2000; Affirmation in Support of Carl G. Dworkin, dated January 11, 2000 and filed January 11, 2000; Affirmation in Opposition of Belinda A. Wagner, dated January 19, 2000 and filed January 24, 2000; and Decision of Judge James P. King, Claim No. 96808 and Motion No. M-58797, dated December 22, 1999 and filed December 27, 1999. In a December 1999 decision, the Hon. James P. King awarded claimant Ronald S. Harvey ("claimant") the sum of $33,100.00 to compensate him for losses that resulted when his name was erroneously removed from a preferred list and a re-employment roster maintained by the New York State Department of Civil Service. A judgment in this amount was entered January 3, 2000. Counsel for claimant has filed a notice of appeal and that matter is now before the Appellate Division, Third Department. In addition, on January 11, 2000, claimant filed this motion pursuant to CPLR 4404 (b) to set aside Judge King's decision and render a new


CPLR 4405 provides that a motion such as this "shall be made before the judge who presided at the trial within fifteen days after decision, verdict or discharge of the jury" and that the court "shall have no power to grant relief after argument or submission of an appeal from the final judgment." The fifteen days is counted not from the date on which the opinion is signed (here, December 22, 1999), but rather from the date that it is filed (here, December 27, 1999) (Bernstein v Swidunovich, 44 Misc 2d 728). The fifteenth day after that later date is January 11, 2000; consequently, this motion is timely. Moreover, claimant has not yet perfected his appeal, so there has been no argument or submission of it. Judge King retired from the bench on December 31, 1999, however, and thus the motion has not and cannot be made to the judge who presided at trial.

The statute makes no reference to situations in which the judge who tried and decided a case is no longer available to hear the motion to set aside the decision or judgment. At least one court has read into this statute the language found in CPLR 2221, which provides, with certain exceptions not applicable here that "[a] motion for leave to renew or to reargue a prior motion, for leave to appeal from, or to stay, vacate or modify, an order shall be made, on notice, to the judge who signed the order, unless he or she is for any reason unable to hear it . . ." [emphasis added]. In 12-16 Arden Assocs. v Vasquez (168 Misc 2d 475), a trial was held and decision issued by a Housing Court judge subsequently suspended from his duties. The new judge to whom all pending cases had been assigned entertained a motion to set aside and order a new trial. Reciting the restriction of CPLR 4405, she held that she had "the power and discretion to review [the suspended Housing Court judge's] decisions and orders on any of the grounds on which [he] could review such decisions and orders had he been available. See e.g. CPLR sec. 2221;" however, this power was viewed as being quite limited:
In reviewing decisions and orders of a Judge of coordinate jurisdiction, this court does not act as an appellate court. Mere errors of law are not sufficient for the court to vacate another Judge's determination. Such errors are correctable by way of appeal. (CCA art 17; Public Serv. Mut. Ins. Co. v McGrath, 56 AD2d 812 [1st Dept 1977].)

(168 Misc 2d at 478.) In that case, because the original trial was found to have been patently unfair, all of the original proceedings were set aside. In a similar situation, the Appellate Division, First Department held that where a motion for a new trial alleged the hearing judge's impropriety as the basis for the relief sought, that judge should not be the one to decide the motion (Arol Dev. Corp. v Goodie Brand Packing Corp., 55 AD2d 869).

Other appellate discussion of this issue has been rare. In two instances, appellate courts have approved the action of a successor judge in resettling a judgment to reflect the decision of the original judge, who had died (Pivnick v Fraley Realty Corp., 157 AD2d 466, lv denied 75 NY2d 712 [1st Dept.]), and of a judicial hearing officer, who had retired (Cappuccio v Cappuccio, 214 AD2d 696 [2nd Dept.]) (see also, CPLR 9002). In neither of those opinions does the court refer to CPLR 4404 or to CPLR 2221.

By contrast, in Gross v State of New York (32 AD2d 598) the Third Department referred to CPLR 4404 and 4405 when affirming the Court of Claims's refusal to set aside an earlier decision, noting that the motion was made some six years after decision and not before the Judge presiding at the trial, who had subsequently retired. While there are a number of cases discussing whether CPLR 4405's time limitation is to be strictly or leniently applied, and whether the 15-day limit can be extended (see, Siegel, Practice Commentaries, McKinney's Consol. Laws of NY, Book 7B, CPLR 4405, p 531 and Supp. p 89; Weinstein, Korn and Miller, NY Civil Practice, ¶ ¶ 4404.37, 4405.01-05), the Court has been unable to discover any other rulings on the question of successor judges under article 44, or any discussions other than the single statement that the judge who tried the case is to be the one to hear the post-trial motion "absent unusual circumstances" (id., ¶ 4405.01, citing to Arol Dev. Corp. v Goodie Brand Packing Corp., 55 AD2d 869).

Stepping back from consideration of this particular statute, however, the Court notes that New York courts sparingly vacate, overrule, modify, reconsider, or disturb the determination of a fellow judge of coordinate jurisdiction (see, 28 NY Jur 2d, Courts and Judges, § 318), displaying a reluctance described as "[f]irmly embedded . . . in our jurisprudence" in the interest of promoting finality (Matter of Haas, 33 AD2d 1, 7-8 quoted in 28 NY Jur 2d, Courts and Judges, § 318, supra; see also, Powell v All City Ins. Co., 74 AD2d 942 [reversal of orders directing commencement of trial in a case stayed by order of a judge of equal rank]). While some states view a judgment as the act of the court as an institution, and thus open to vacatur or reconsideration by a successor judge, many others do not. They either limit the type of issues that may be considered by the successor, prohibit consideration by a successor altogether, or take the position that "in general a successor judge may not vacate a judgment entered by a predecessor, [but] there may arise special circumstances which warrant such action" (Annotation: Power of Successor Judge Taking Office During Term Time to Vacate, Set Aside, or Annul Judgment Entered By His or Her Predecessor, 51 ALR5th 747, § 6).

It appears that, at least with respect to post-trial motions to set aside a judgment, New York more nearly falls in the last category. There is, as noted, strong acceptance of the general view that one judge should not pass on or overrule determinations made in the same matter by a judge of equal rank. The New York cases discussed above in which successor judges have ruled on motions to set aside a colleague's final decision and judgment appear to fall into two categories, each of which can be characterized as presenting "special" circumstances. In Arol Development Corp. v Goodie Brand Packing Corp. (55 AD2d 869, supra) and 12-16 Arden Assoc.s v Vasquez (168 Misc 2d 475, supra), the new trial was sought precisely because of alleged improprieties on the part of the original judge, an issue on which that individual could hardly rule with impartiality. In Pivnick v Fraley Realty Corp. (157 AD2d 466, lv denied 75 NY2d 712, supra) and Cappuccio v Cappuccio (214 AD2d 696, supra), the alleged error was essentially ministerial in nature, and the change sought was relatively minor resettlement of judgments. It seems fitting and practical for a successor judge to resolve defects such as these--matters of fundamental fairness of the trial or correction of minor, technical errors--rather than to consign them to appellate review.

This motion presents decidedly different circumstances. Each of the grounds asserted for setting aside Judge King's decision and the resulting judgment presents an issue of law and/or question of fact that is quite properly ruled upon by an appellate court. For a judge of coordinate jurisdiction to revisit the evidence and the arguments that were presented at trial and, as claimant requests, to make new findings of fact, reach new conclusions of law and issue a new and different decision comes too close for this Court's comfort to disrupting the "orderly administration of justice," in the ways denounced with such fervor in Matter of Haas (33 AD2d 1, supra).

To summarize the situation, Judge King issued a decision following trial, which held that claimant, a former state employee whose name had been erroneously removed from a preference list and re-employment roster for several months, was entitled to a Grade 18 position filled on November 1, 1995. Consequently, Judge King awarded damages from that date until September 30, 1996, when claimant was in fact employed by the State in a Grade 23 position; specifically, Judge King awarded damages comprising the salary that claimant would have received during those eleven months, less amounts he collected from unemployment compensation benefits and alternative employment; the amount that the employer would have paid into claimant's retirement account; the amount claimant paid in order to obtain medical insurance coverage during that time; and an amount representing the loss of eleven months of credit toward retirement.

In support of this motion to set aside that prior decision and judgment, claimant argues that the trial court made five different types of error in calculating the award of damages; specifically, claimant argues that he was entitled to compensation at a Grade 27 level for the months of September and October 1995; compensation at a Grade 18 level from August 1995 and a Grade 23 level from January 1996; additional compensation on account of distribution of his previously deferred compensation; and punitive damages.[2] These are, without question, the type of issues raised and traditionally resolved by way of an appeal. They represent simple disagreement with the factual findings and legal conclusions reached by the trial judge, not "special circumstances."

The remedy of appeal is open to claimant and he has, in fact, availed himself of it. If the Court were to entertain this CPLR 4404 motion any new decision issued might still prove unsatisfactory to claimant, or defendant might object to the new rulings. In either event, a new appeal could be taken, which would ask the Third Department to rule on precisely the same issues presently before it. That being the case and in view of the nature of the factual and legal issues raised by claimant, the Court perceives very little to be gained and quite a lot to be lost by reviewing Judge King's reasoning and decisions on such matters; the Court accordingly denies claimant's motion.

June 1, 2000
Albany, New York

Judge of the Court of Claims

[1]CPLR 4404 (b) provides that "[a]fter a trial not triable of right by a jury, upon the motion of any party or on its own initiative, the court may set aside its decision or any judgment entered thereon. It may make new findings of fact or conclusions of law, with or without taking additional testimony; render a new decision and direct entry of judgment; or it may order a new trial of a cause of action or separable issue."
[2]Judge King's decision also contained a ruling denying claimant's motion to compel additional discovery (Motion No. M-58797), which claimant also challenges and the Court declines to revisit in light of its decision not to set aside Judge King's decision and judgment.