In a Decision and Order dated March 29, 2000 and filed April 5, 2000 (the
"Decision and Order"), this Court denied claimant's motion for permission to
file a late claim. In his proposed claim, P.A. asserted that he tested positive
for the HIV virus after sharing a cell at Woodbourne Correctional Facility with
another inmate who, unbeknownst to him at the time, was HIV-positive. Claimant
appealed the Decision and Order, which was affirmed. See P.A. v State of New
York, 2000 NY Slip Op 10131, 716 NYS2d 423 (3d Dept 2000). This is
claimant's motion pursuant to CPLR §5015(a)(2) for an order vacating the
Decision and Order.
CPLR 5015(a)(2) provides that "[t]he court which rendered a judgment or order
may relieve a party from it upon such terms as may be just . . . upon the ground
of . . . newly-discovered evidence which, if introduced at the trial, would
probably have produced a different result and which could not have been
discovered in time to move for a new trial . . ."
The "newly-discovered evidence" submitted by claimant includes his own medical
records; a Department of Correctional Services ("DOCS") "Comprehensive Medical
Summary Form" for his cellmate; affidavits from claimant's family members; and a
DOCS directive on "Double Cell Procedures."
By its very terms, CPLR 5015(a)(2) appears applicable to orders or judgments
following a trial, not to orders on late claim motions. Nor has claimant
provided a satisfactory explanation as to his failure to submit such
documentation in connection with his late claim motion.
However, even assuming, arguendo, that CPLR 5015(a)(2) were applicable
to the Decision and Order, and even assuming that the documents now submitted by
claimant could not have been obtained by him in connection with his late claim
motion, such documents would not "probably have produced a different
The new documentation does not alter the fact, as stated in the Decision and
Order, that claimant has failed to present medical expertise relating to the
time lag between exposure and becoming symptomatic or, moreover, as to the
medical validity of his theory, i.e.
, that sharing a razor with an
HIV-positive cellmate caused him to become HIV-positive. Nor has claimant shown
that defendant knew or should have known that his cellmate was
The new documentation also does not change the fact that claimant failed to
supply a legally cognizable excuse for late filing within the meaning of the
late claim statute.
For the foregoing reasons, IT IS ORDERED that motion no. M-62996 is