New York State Court of Claims

New York State Court of Claims

SLATE v. THE STATE OF NEW YORK, #2001-015-197, Claim No. 96573, Motion Nos. M-63912, CM-64021


Claimant's post trial motion pursuant to CPLR 4404 (b) seeking vacatur of prior trial decision and awarding of judgment in claimant's favor is denied. State's cross-motion to vacate denial of cross-claim likewise denied. Prior decision awarding claimant some of damages sought is adhered to.

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):
Claimant's attorney:
Jerold S. Slate, Esquire
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Dennis M. Acton, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
October 24, 2001
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant, a self-represented attorney brings this post trial motion pursuant to CPLR 4404(b) for an order setting aside that part of the Court's decision dated July 19, 2001 which denied his claim for $62,385.00 in legal fees plus interest thereon and rendering a new decision directing entry of a judgment in claimant's favor in that amount. The defendant opposed the motion and cross-moved for an order vacating that part of the same decision which denied the State's counterclaim to recoup an alleged overpayment of attorneys fees previously paid to claimant pursuant to Public Officers Law § 17 and setting aside that portion of the decision which awarded claimant a judgment in the amount of $2,755.89 plus interest from April 23, 1997. Both the motion and cross-motion are hereby denied. The trial of this claim occurred on March 26, 27 and 28, 2001. Post trial briefs were subsequently submitted by both parties and after due deliberation the Court issued a decision granting only partial relief to the claimant and dismissing the defendant's counterclaim in its entirety. The decision which was filed on July 31, 2001 directed the Clerk to enter judgment. Relief pursuant to CPLR 4404 (b) is addressed to the discretion of the Court (Carney v Carney, 236 AD2d 574; McCarthy v Port of N.Y. Auth., 21 AD2d 125). Rule 4404 (b) provides:
Motion after trial where jury not required. After 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.
Claimant's affirmation in support of the motion merely reiterates the same factual allegations and legal arguments raised at trial and in his post-trial brief which were previously considered by the Court in fashioning its trial decision. For example, claimant asserts that since the State Comptroller audited and approved the first 15 vouchers submitted by claimant in connection with his legal representation of Correction Officer Kirk Montgomery in a federal lawsuit (Brooks v Montgomery, et al, 95 CV 542, in the United States District Court, Northern District of New York) all subsequent vouchers submitted in connection with his continued representation of Montgomery were a fortiori, legal, reasonable and payable in full in the amount of $62,385.00 plus interest.

Claimant's conclusory and repetitious statements are insufficient to convince this Court that it should set aside its decision and issue a new decision directing entry of a judgment in claimant's favor.

The Court is equally unpersuaded by the defendant's cross-motion and the assertions of defendant's counsel that the State's evidence at trial presented a prima facie showing that claimant had been overpaid for his legal representation of Montgomery beginning with claimant's September 1995 voucher and ending with the October 1996 voucher and that in addition to denying claimant additional compensation for services included in vouchers from November 1996 through February 1997 the State could recover $120,000.00 in overpayments. Nothing presented on the cross-motion provides a basis for the Court's reconsideration of its decision with regard to the counterclaim.

Accordingly, the claimant's motion and defendant's cross-motion to set aside the Court's prior decision is denied and the Court adheres to its prior decision in all respects and the judgment entered therein shall remain undisturbed.

October 24, 2001
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated August 10, 2001;
  2. Affirmation of Jerold S. Slate dated August 10, 2001, with exhibits;
  3. Cross-motion dated August 31, 2001;
  4. Affirmation of Dennis M. Acton sworn to August 31, 2001;
  5. Affirmation of Jerold S. Slate dated September 4, 2001.