New York State Court of Claims

New York State Court of Claims

BERNARD v. THE STATE OF NEW YORK, #2002-011-596, Claim No. 103309, Motion No. M-65489


Synopsis


Claimant's motion to renew is denied.

Case Information

UID:
2002-011-596
Claimant(s):
MICHAEL BERNARD, 92 A 0882
Claimant short name:
BERNARD
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
103309
Motion number(s):
M-65489
Cross-motion number(s):

Judge:
THOMAS J. McNAMARA
Claimant's attorney:
Michael Bernard, Pro Se
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Saul Aronson, Esq.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
October 24, 2002
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision


Claimant's motion, designated as one to "renew" is more properly considered a motion to

vacate the judgment. (see, CPLR 5015).

The claim is based on allegations that claimant, an inmate, was burned while using a corrosive cleaner to clean a shower area at Clinton Correctional Facility. According to claimant, he did not receive any training in the use of the cleaner and was not provided with appropriate safety equipment. Following a trial on April 25, 2002 the court dismissed the claim based upon a failure to establish the cause of action by a fair preponderance of the evidence. Claimant has not provided a record of the trial.

A court may vacate a judgment or 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]). In support of the motion claimant has submitted a letter from the manufacturer of the cleanser and a copy of the Material Safety Data Sheet for the product. In his affidavit claimant maintains that these documents are essential to his claim and implies that he would have provided it at the time of trial if they were available. 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).

The letter from the manufacturer (which claimant refers to as an affidavit though clearly it is not) is not in evidentiary form. Furthermore, the letter does not contain any relevant information not shown in the Material Safety Data Sheet. Importantly, the Data Sheet, which does contain information relevant to the claim, has not been shown to be newly discovered. In fact, in the copy of the claim filed with the court claimant makes reference to the Data Sheet. Inasmuch as the information on which the motion relies was available to claimant at the time of trial, the motion is denied.


October 24, 2002
Saratoga Springs, New York

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


Papers Submitted:

1. Notice of Motion dated June 19, 2002
2. Amended Motion for Renewal dated July 3, 2002
3. Affidavit in Support of Michael Bernard sworn to the 19th day of June, 2002 with exhibits annexed
4. Affirmation in Opposition of Saul Aronson, Esq. dated July 1, 2002