New York State Court of Claims

New York State Court of Claims

COLON v. THE STATE OF NEW YORK, #2001-011-551, Claim No. 94396, Motion No. M-63173


Synopsis


Claimant's motion to vacate judgment based upon newly discovered evidence is denied.

Case Information

UID:
2001-011-551
Claimant(s):
ARMANDO COLON
Claimant short name:
COLON
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
94396
Motion number(s):
M-63173
Cross-motion number(s):

Judge:
THOMAS J. McNAMARA
Claimant's attorney:
Armando Colon, Pro Se
Defendant's attorney:
Hon. Eliot Spitzer, Attorney General(Kathleen M. Resnick, Esq., Assistant Attorney General)
Third-party defendant's attorney:

Signature date:
May 10, 2001
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision


Claimant's motion, designated as one for "reargument" is more properly considered amotion to vacate the judgment based upon newly-discovered evidence (see, CPLR 5015[a] [2]).

Following a trial on June 22, 2000 the court awarded claimant damages in the amount of $104.46 on his claim for personal property lost through the negligence of defendant. The lost property included pages of a trial transcript. Claimant has now moved to vacate the award based on information he has obtained showing that the cost of replacing the transcript is $1,125.00. The information was obtained by correspondence with the Supreme Court Clerk, Bronx County which indicates the approximate number of pages of the transcript and the cost of photocopying each page.

In order to vacate a prior judgment or order based upon newly discovered evidence, the moving party has the burden of establishing that the new evidence would have produced a different result and that such evidence could not, despite due diligence, have been discovered earlier (Evergreen Bank N.A. v Dashnaw, 262 AD2d 737). Claimant has failed to show that the cost of reproducing the transcript could not have been discovered prior to the trial. Accordingly, the motion is denied.

May 10, 2001
Saratoga Springs, New York

HON. THOMAS J. MCNAMARA
Judge of the Court of Claims



Papers Submitted:

  1. Notice of Motion dated February 28, 2001
  2. Affidavit in Support sworn to the 28th day of February, 2001 with exhibits annexed
  3. Affirmation in Opposition of Kathleen M. Resnick, Esq. dated March 9, 2001
  4. Unsworn Claimant's Reply dated March 22, 2001