New York State Court of Claims

New York State Court of Claims

ZAIRE v. THE STATE OF NEW YORK, #2001-011-552, Claim No. 96541, Motion No. M-62949


Synopsis


Claimant's motion to vacate an order of dismissal is denied.

Case Information

UID:
2001-011-552
Claimant(s):
DAVID ZAIRE
Claimant short name:
ZAIRE
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
96541
Motion number(s):
M-62949
Cross-motion number(s):

Judge:
THOMAS J. McNAMARA
Claimant's attorney:
David Zaire, Pro Se
Defendant's attorney:
Hon. Eliot Spitzer, Attorney General(Belinda A. Wagner, 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 order dismissing the claim (see, CPLR 5015[a]).

Following a trial on October 16, 2000 the court dismissed the claim for failure to prove a prima facie case. The claim was based upon allegations that the defendant failed to comply with directives governing the allocation of prison inmate wages. Claimant has now moved to vacate the award on the basis that testimony offered by a witness called by defendant as to claimant's rate of pay during the period from January 1997 through May 1997 was either deliberately misrepresented to the court or based upon incomplete information.

While a court may vacate a prior order upon the ground of newly discovered evidence (CPLR 5015[a] [2]), fraud, misrepresentation or other misconduct of an adverse party (CPLR 5015 [a] [3]), claimant has not demonstrated that vacatur of the order dismissing the claim is warranted on any of these grounds. As defendant points out, the evidence at trial showed that at the relevant times claimant was not entitled to the food service worker rate of pay. Therefore, the testimony offered by defendant to show that claimant was paid at the correct rate, which claimant now argues was less than that earned by a food service worker, does not provide a basis for vacating the order dismissing the claim.

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 December 22, 2000
  2. Unsworn affidavit dated December 18, 2000 with exhibit annexed
  3. Affirmation in Opposition of Belinda A. Wagner, Esq. dated January 9, 2001
  4. Letter dated January 16, 2001 of David Zaire for consideration