New York State Court of Claims

New York State Court of Claims

FRANCO v. STATE OF NEW YORK, #2003-018-224, Claim No. 105230, Motion No. M-66525


Synopsis


There is no basis for setting aside the decision pursuant to CPLR 5015. Accordingly, claimant's motion is DENIED.

Case Information

UID:
2003-018-224
Claimant(s):
JOSE FRANCO
Claimant short name:
FRANCO
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
105230
Motion number(s):
M-66525
Cross-motion number(s):

Judge:
DIANE L. FITZPATRICK
Claimant's attorney:
JOSE FRANCOPro Se
Defendant's attorney:
ELIOT SPITZER
Attorney General of the State of New York
By: JOEL L. MARMELSTEIN, ESQUIREAssistant Attorney General
Third-party defendant's attorney:

Signature date:
June 4, 2003
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision
Claimant brings a motion pursuant to CPLR 2221 to reargue the dismissal of his claim. Claimant was apparently under the impression that his claim was dismissed because the notice of intention he served upon the defendant was not verified. As defendant aptly points out, claimant's claim was dismissed on the merits after a trial. In response to defendant's opposing affirmation, claimant changes the relief he requested in his notice of motion to a motion to renew.

A decision or judgment reached after a trial is not subject to a motion to renew or reargue (
Able v Able, 209 AD2d 972; Esterle v Dellay, 281 AD2d 722, 724). It appears that claimant actually seeks to make a motion, pursuant to CPLR 4404(b), to set aside the decision and judgment or pursuant to CPLR 5015, for relief from the judgment. In either case, claimant's motion must be denied. A motion pursuant to CPLR 4404(b) must be made within fifteen days of the decision. The decision in this matter was filed on September 5, 2002, and this motion was filed on March 6, 2003, well beyond fifteen days from the date of decision. Moreover, the Court does not find any reason to set aside its prior decision.
Claimant now attaches a copy of his "Ambulatory Services Report" from Riverview Correctional Facility, which allegedly indicates he suffered from lower back pain and neck pain before October 2, 2001, purportedly proving that he met the criteria which would require the State to provide claimant with a lower bunk assignment. There appears to be no reason why this report could not have been previously
produced. Therefore, it is not newly discovered evidence which was previously unavailable, nor would it have changed the result. None of the other grounds set forth in CPLR 5015 have been alleged (See, Evergreen Bank, N.A. v Dashnaw, 262 AD2d 737, 738; Texido v S&R Car Rentals Toronto, Ltd., 244 AD2d 949). There is no basis for setting aside the decision pursuant to CPLR 5015.
Accordingly, claimant's motion is DENIED.

June 4, 2003
Syracuse, New York

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


The Court considered the following in deciding this motion:

Notice of Motion......................................................................................1

Affidavit of Jose Franco in support with attachments..............................2

Affirmation of Joel L. Marmelstein, Esquire, Assistant

Attorney General in opposition, with exhibits attached thereto....3


Reply Affidavit of Jose Franco with exhibit attached thereto...................4