New York State Court of Claims

New York State Court of Claims

DAVIS v. STATE OF NEW YORK, #2001-018-091, Claim No. 97735, Motion Nos. M-62900, M-63100


Synopsis



Case Information

UID:
2001-018-091
Claimant(s):
TERRANCE DAVIS
Claimant short name:
DAVIS
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
97735
Motion number(s):
M-62900, M-63100
Cross-motion number(s):

Judge:
DIANE L. FITZPATRICK
Claimant's attorney:
TERRANCE DAVISPRO SE
Defendant's attorney:
ELIOT SPITZER
Attorney General of the State of New York
By: ROGER B. WILLIAMS, ESQUIRE
Assistant Attorney General
Third-party defendant's attorney:

Signature date:
June 18, 2001
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

Claimant brings two motions. The Court has considered the following documents in


determining the motions:


Motion No. M-62900


Notice of Motion for Relief of Judgment upon grounds

of newly discovered evidence and for a new trial........................1


Notice of Motion for Permission to Proceed as Poor Person.........2


Affidavit of Terrance Davis in support of application

pursuant to CPLR 1101................................................................3


Affidavit of Terrance Davis in support of motion for relief

from judgment upon grounds of newly discovered

evidence.........................................................................................4


Affirmation in opposition by Roger B. Williams, Esquire

Assistant Attorney General...........................................................5


Motion No. M-63100


Notice of Motion to furnish stenographic transcript without

fee to poor person...........................................................................6


The Court will initially address Claimant's motion seeking to reopen the judgment based upon the grounds of newly discovered evidence.

Claimant filed a claim in this Court on January 30, 1998, seeking damages as the result of the alleged negligence of the State in leaving a mop bucket and water on the floor in a bathroom of A-2 housing area at Ogdensburg Correctional Facility on December 14, 1997. On that date, Claimant allegedly stepped on the mop bucket and fell breaking his right ankle and injuring his foot. A trial was held on July 28, 2000, during which Claimant testified and had the opportunity to call witnesses. The defense cross-examined Claimant and called Correction Officer Brian Casey, who was assigned to Claimant's dormitory on December 14, 1997, to testify. After hearing the testimony and reviewing the documents this Court rendered its decision dismissing the claim. The Court based its decision on the credibility of Officer Casey and the lack of notice to the State of any dangerous condition.

Claimant seeks to reopen the judgment on the ground that in December 2000 he made a "FOIL" (presumably Freedom of Information Law) request for the housing unit log book. Claimant maintains that the log book had the 11:45 a.m., entry of Officer Casey, noting that "Inmate Davis, Terence 97A2647-13 slipped in bathroom twisting his ankle ..." (Affidavit of Terence Davis dated February 5, 2000) Claimant argues that this notation contradicts the testimony of Correction Officer Casey as reflected in the Court's decision.

CPLR 5015 authorizes a Court which rendered a judgment to relieve a party from it 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 under section 4404." (CPLR 5015(a)(2)) The key is that the evidence discovered would probably produce a different result. The "mere showing of possibility is insufficient. So is a showing that the new evidence is cumulative or relevant only to a witness's credibility." (Siegel, NY Prac. §428 at 695 [3ed.])

Claimant has failed to show why this evidence could not have been discovered sooner even before the trial. (Contractor Cas. & Sur. Co. v Broadhollow Realty, LLC., 276 AD2d 738) Moreover, Claimant's newly discovered evidence would not produce a different result. The entry of Officer Casey in the log book is merely cumulative of the undisputed trial fact that Claimant slipped in the bathroom and twisted his ankle. The issue was how Claimant slipped, and based upon the evidence at trial, the Court found Officer Casey's version of the facts more credible. The log book entry would not change this finding, nor does it affect the issue of notice to the State.

Accordingly, this portion of Claimant's motion must be denied.

Claimant also makes an application for permission to proceed as a poor person pursuant to CPLR 1101 (M-62900). Claimant also makes a separate motion for permission to proceed as a poor person in order to be furnished a stenographic transcript without fee (M-63100).

The requests for poor person status are denied. Initially motion number M-63100 fails to include the necessary documents for consideration, as no supporting affidavit has been provided. (See, CPLR 1101(a)) Furthermore, Claimant has previously made a request for poor person relief in this Court (motion number M-57001) which was denied by Order of the Honorable Nicholas V. Midey, Jr., filed on March 31, 1998. There is nothing currently before the Court which would indicate that there has been any change which would warrant a different determination. Claimant's request for poor person status, motion number M-62900, was made in conjunction with his request for relief from the judgment, seemingly in anticipation of further proceedings in this Court, the same has been rendered moot by this Court's above determination. Even more compelling is the fact that CPLR 1101(c) requires that notice of the motion must be served upon the county attorney in the county where the action is triable. Claimant has not provided any affidavit evidencing service on the county attorney. This alone is grounds for denial. (Bowman v State of New York, 229 AD2d 1024; Harris v State of New York, 100 Misc 2d 1015; Warren v. State of New York, J. Corbett, filed January 7, 2000, Claim number 88565, Motion number M-60370)

Based upon the foregoing, Claimant's motions are DENIED.


June 18, 2001
Syracuse, New York

HON. DIANE L. FITZPATRICK
Judge of the Court of Claims