The following papers were read and considered on defendant's motion to set
aside the decision of this Court filed on October 27, 2000 and judgment entered
November 3, 2000 pursuant to CPLR 4404 (b) and CPLR 5015 (a) (2): Notice of
Motion, dated December 5 and filed December 6, 2000; Affirmation of Elyse J.
Angelico, Esq., AAG, dated December 5 and filed December 6, 2000, with annexed
Exhibits A-B; Letter of Larry G. Campbell, dated December 12 and received
December 18, 2000; and Letter of Larry G. Campbell, dated December 20 and
received December 28, 2000.
On September 22, 2000, this claim was tried before me via video conference from
Sing Sing Correctional Facility ("Sing Sing") in the Village of Ossining,
Westchester County. Claimant, an asthmatic, presented uncontroverted testimony
and documentary evidence (portions of his medical records) that while
incarcerated at Sing Sing/Tappan he had been assigned to double bunk with an
inmate who smoked and housed on other than the ground floor for roughly six
weeks contrary to his medical restrictions.
The Court initially reserved decision pending physical receipt of the copies of
claimant's medical records accepted into evidence as claimant's exhibit 1, and a
copy of the applicable Sing Sing policy to be furnished to the Court and
claimant by defendant State of New York ("defendant" or "the State"). In
addition, by letter dated September 22, 2000, claimant corrected his testimony
by informing the Court and defendant that he had, in fact, been assigned to a
double bunk for approximately nine months and to a double bunk on the third
floor for approximately the first six weeks of this nine-month period.
The Court subsequently found that the State had breached a duty to claimant to
insure that proper medical directives were followed, and awarded him damages in
the amount of $2,500.00 for the discomfort he endured as a result (Campbell v
State of New York, Ct Cl, unreported decision filed Oct. 27, 2000, Read,
P.J., Claim No. 96899). Inherent in so much of the Court's decision as related
to double bunking was her understanding that claimant had been assigned to a
double bunk in a confined, enclosed space--specifically, a cell--with an inmate
who smoked. Defendant's counsel now informs the Court that claimant was, in
fact, assigned to a double bunk in a cubicle in what is variously described as
"an open ‘dormitory/barrack' type room," "a spacious dorm room," "an
open dormitory room" and "a large dormitory setting," which is "substantially
different" from a cell "where two inmates are housed together in a partially
enclosed space" (Affirmation of Elyse J. Angelico, Esq., AAG, dated December 5
and filed December 6, 2000, with annexed Exhibits A-B ["Angelico Aff."],
¶¶ 15, 17, 18 and 19 respectively); and asserts that no policies or
regulations govern or prohibit smoking in the open living area where claimant
double bunked during the relevant period of time (id], ¶ 19) and
that "[t]here is no evidence that Claimant was housed in a top bunk"
(id., ¶ 24).
Defendant submits as Exhibit A a series of pictures showing a room with rows of
sleeping compartments separated from each other by partitions that appear to be
approximately 4½-feet high; and as Exhibit B, the affidavit of Sing Sing's
First Deputy Superintendent, who avers that upon his review and inspection of
records pertaining to claimant's residence at Tappan (1) "there is no indication
that [claimant] was in a top bunk . . . at any time, and specifically during the
period from August 1, 1997 through April 1998" (Affidavit of Joseph Smith, sworn
to on November 30, 2000, ¶ 2); and (2) "from August 1, 1997, through
September 16, 1997, [claimant] was housed . . . on the third floor, bottom bunk;
and that from September 17, 1997, through April, 1998, [claimant] was housed on
the first floor in a bottom bunk (id., ¶ 3); and moves pursuant to
CPLR 4404 (b) and CPLR 5015 (a) (2) to set aside the Court's decision and
judgment because of this newly discovered evidence (Notice of Motion, dated
December 5 and filed December 6, 2000; Angelico Aff., ¶ 25). In essence,
defendant argues that the double-celling regulations cited in the Court's
decision and a Sing Sing double-celling policy that defendant provided to the
Court as the relevant facility-specific guideline or procedure are inapplicable
to the actual facts and circumstances underlying so much of this claim as
relates to double bunking--which differ from facts and circumstances in the
trial record--and perforce claimant has not established the State's breach of
any duty of care by a preponderance of the evidence.
Defendant's motion pursuant to CPLR 4404 (b) is untimely (see, CPLR
4405; Kerner v Kerner, 262 AD2d 1082, lv dismissed, lv denied 94
NY2d 873); however, defendant may seek and has sought the same relief pursuant
to CPLR 5015 (a) (2), which excuses a party from a judgment upon the grounds of
"newly-discovered evidence which, if introduced at trial, would probably have
produced a different result and which could not have been discovered in time to
move for a new trial under section 4404" (CPLR 5015 [a] ). "The words
‘could not have been discovered' in CPLR 5015 (a) (2) refer to evidence
not discoverable with due diligence" (Corpuel v Galasso, 240 AD2d 530,
533, lv dismissed 91 NY2d 922).
Defendant's newly proffered evidence relating to the physical lay-out of the
inmate living areas at Tappan (Angelico Aff., Exh. A) is arguably material and
may have changed the result if it had been introduced at trial (see,
Olwine, Connelly, Chase, O' Donnell & Weyher v Valsan Inc., 226 AD2d
102); however, defendant has not established that this evidence was unavailable
to it and thus undiscoverable before trial. The simple fact is that defendant
was in possession of this information constituting the "new evidence" at all
stages of this litigation (see, Structural Concrete Corp. v George
Campbell Assocs. Corp., 224 AD2d 516, 517), yet fails to explain why it was
not "on notice of the relevant facts" (H&Y Realty Co. v Baron, 193
AD2d 429, 430) during the trial or why it failed to present these facts to the
"A judgment [should] not be vacated because a litigant has omitted to offer
evidence at its disposal" (Winter v New York Life Ins. Co., 260 App Div
676, 677, lv denied 261 App Div 816). Further, it is not the purpose of
a CPLR 5015 (a) (2) motion to cure a party's mere inadvertence to present its
case during the trial or to offer a second bite at the apple (see,
e.g., Winter v New York Life Ins. Co., supra; Collins v
Central Trust Co. of Rochester, 226 App Div 486, 488, lv dismissed
227 App Div 764; Levantino v Insurance Co. of N. Am., 102 Misc 2d 77,
81). Here, defendant has failed to establish that the putative new evidence of
claimant's actual living conditions could not have been obtained before trial
with the exercise of due diligence.
A few additional points merit attention. The Court has listened to the
audiotapes of the trial, and what defendant's counsel now informs her about the
nature and lay-out of the inmate living area at Tappan alters her understanding
of claimant's trial testimony, but she does not consider his testimony
duplicitous (cf., Angelico Aff., ¶ 12). Claimant seems
honestly--whether or not mistakenly--to equate a cubicle at Tappan outfitted
with a double bunk to a double-bunking cell.
Insofar as claimant intended to argue that the regulations applying to
"double-cell housing" and a "double occupancy housing unit" likewise apply to a
cubicle with a double bunk, he is plainly wrong. Both "double-cell housing" (7
NYCRR 1701.2) and a "double occupancy housing unit" (9 NYCRR 7621.6) are defined
as an individual self-contained space with a "controlled locking device
secured from inmate access" (emphasis added). If the papers on this motion
make one thing clear, it is that a cubicle at Tappan is not secured from inmate
access by a controlled locking device.
Whether or not a cubicle at Tappan outfitted with a double bunk is nonetheless
functionally equivalent to a double-bunking cell for purposes of assessing
defendant's compliance with claimant's particular medical restriction against
housing with a smoker is another matter altogether, which the Court did not
decide and declines to decide on this still sketchy record. Specifically, the
Court notes that the photographs comprising defendant's newly proffered Exhibit
A, although submitted in support of counsel's description of claimant's living
area while double bunking at Tappan as "a spacious dorm room" (Angelico Aff.,
¶ 17) "substantially different" from a cell "where two inmates are housed
together in a partially enclosed space" (id., ¶ 19), seems to depict
only cubicles with single beds, not cubicles with double bunks. Claimant
was eventually moved to a cubicle with a single bed at Tappan, and never alleged
that this housing arrangement contravened any applicable medical
Next, the Court notes that the affidavit comprising defendant's newly proffered
Exhibit B does not refute claimant's testimony and evidence that for six weeks
he was housed on the third floor at Tappan despite a medical restriction
limiting him to housing on the ground floor. Specifically, First Deputy
Superintendent Smith attests that "there is no indication that [claimant] was
in" a top bunk at Tappan, which is beside the point since claimant never
and confirms claimant's
testimony that he was housed on the third floor at Tappan for roughly six weeks.
Defendant presented no evidence either at trial or on the motion to contradict
claimant's testimony and the information in his medical records relating to his
Based on the foregoing, the Court denies the State's motion pursuant to CPLR
4404 (b) as untimely; the Court also denies the State's motion pursuant to CPLR
5015 (a) (2) because the proffered new evidence upon which the motion is
predicated was available at trial.
Defendant called no witnesses and offered no
documents into evidence. Defendant's cross-examination of claimant consisted of
the following questions and answers:
Counsel: Why were you double-bunked at that time?
Claimant: Because--I'm giving you what was explained to me, in disregard of the
screening criteria, is that every, every, at that point in time--they don't do
it since I filed a claim--but at that point in time everybody who came to
Tappan, mitigating circumstances or not, was assigned to a double bunk.
Counsel: Now, around August 1997, that's when you say you were double-bunked,
is that correct?
Claimant: August 1, 1997.
Counsel: Wasn't it true that you had requested medical attention at that
Claimant: I don't understand, I was receiving ongoing medical treatment.
Counsel: Were you sent to the medical flats and is that where the
Claimant: No, there's no such thing as medical flats here.
Counsel: There's no such thing as medical flats?
Claimant: In fact, when I was transferred from Sing Sing to Tappan, I was
assigned to the third floor and--oh, I didn't point out previously, in the
computer, in the offices here they call classification and movement, they keep
records of each inmate and they also maintain records of cell movement,
transfers, what have you--in that computer, as far as I was concerned, in the
computer it specifically said that I should be maintained on the flats, and that
was a reminder of anybody who didn't have access to the records, it was like a
red flag indicating to the individual processing the move that that in fact
should have been my assignment--to the flats.
Counsel: I have no further questions, your honor. . . .