5. Filed documents: Claim, Answer, Decision and Order (M-65898) of the
Honorable Edgar C. NeMoyer filed October 25, 2002, Trial Decision of the
Honorable Edgar C. NeMoyer filed December 9, 2002, and Judgment of Dismissal
dated December 16, 2002. The claim in this matter was tried before the Hon.
Edgar C. NeMoyer and, after a Decision filed on December 9, 2002, was dismissed
by a Judgment dated December 16, 2002. With this motion, Claimant Hector L.
Pimentel requests that I vacate the decision and judgment dismissing his claim,
grant him a new trial, and permit him to amend his claim. I note that, on page
5, in the last line of his responding papers, Claimant withdrew his request for
permission to amend his claim. I will, therefore, deal with the remaining
unresolved requests contained in his motion.
Claimant, citing Court of Claims Act § 9(8) ("CCA"), which allows a court
to vacate a judgment in the interests of justice, sets forth four reasons that
he believes he should be granted a new trial. First, he alleges that the trial
court improperly declined Claimant's request to order the production of another
inmate (Emerson Whitmore 99-R-1481) to give testimony at the trial. Second,
that the Court improperly denied Claimant's request (apparently made on the day
of the trial) to adjourn the trial. Third, that Claimant was prejudiced by
being handcuffed during the trial. Fourth, Claimant obliquely alleges that the
Court was biased in favor of Defendant.
Procedurally, I note that Claimant identifies CCA § 9(8) as the underlying
authority for the relief he requests. That section states that a new trial may
be granted "upon any grounds for which a new trial may be granted in the supreme
court." Therefore, while that section does indicate that the Court has such
authority, it defers to the controlling sections of the Civil Practice Law and
Rules ("CPLR") for a determination of how and under what circumstances that
authority is to be exercised (see also CCA § 9). The sections of
the CPLR upon which Claimant could base a motion for a new trial are CPLR 4404
(b) and CPLR 5015 (a) (2).
However, relief pursuant to CPLR 4404 is unavailable to Claimant. Initially, I
note that such a motion is untimely. A motion for a new trial must be made
within 15 days of the filing of a decision (see CPLR 4405; Kerner v
Kerner, 262 AD2d 1082, lv dismissed, lv denied 94 NY2d 873).
Claimant's motion was filed on January 17, 2003, more than a month after the
decision was filed on December 9, 2002.
Nonetheless, even if the motion were timely, I would be compelled to deny it
for several reasons. First, I find that Claimant has failed to demonstrate his
right to the requested relief. He has failed to identify any error of the
Court, let alone an error so egregious that a new trial should be ordered in the
interests of justice. Claimant's arguments notwithstanding, I do not find
evidence that inmate Whitmore's testimony was essential or even relevant to the
prosecution of his case. Nothing in the papers before me indicates that Judge
NeMoyer improperly refused to order this witness produced, or to proceed with
the trial without him.
Claimant's other contentions regarding being forced, for security reasons, to
remain in handcuffs during the trial and the alleged bias of the Court toward
Defendant are unsupported and without merit.
Similarly, relief pursuant to CPLR 5015 (a) (2) is unavailable to Claimant.
That section permits proof to be reopened, or a new trial to be granted, in
light 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]
). "The words ‘could not have been discovered' in CPLR 5015 (a) (2)
refer to evidence not discoverable with due diligence" (Corpuel v
Galasso, 240 AD2d 530, 533, lv dismissed 91 NY2d 922). In this
regard, Claimant implies that a letter from his proposed witness is such "newly
discovered evidence." I find that it is not.
First, the necessity and relevance of Mr. Whitmore's testimony was the subject
of a motion by Claimant which was denied by Judge NeMoyer on October 25, 2002.
Claimant apparently renewed this motion unsuccessfully at trial. Therefore,
this inmate's identity was clearly known to Claimant long before the trial. The
"new" evidence submitted by Claimant is an unsworn, confusing, and heavily
redacted letter from inmate Whitmore. Notably, one of the few comprehensible
statements contained in this letter is inmate Whitmore's admission that he has
no knowledge of who assaulted Claimant. For this reason, I find that this
inmate's testimony would add little, if anything, to the evidence that was
presented at trial. Therefore, his proposed testimony is neither new, nor
something that could be expected to alter the outcome of the trial.
Finally, as stated in 12-16 Arden Assocs. v Vasquez, (168 Misc 2d 475,
478): "In reviewing decisions and orders of a Judge of coordinate jurisdiction,
this court does not act as an appellate court. Mere errors of law are not
sufficient for the court to vacate another Judge's determination. Such errors
are correctable by way of appeal." I note that Claimant has filed an appeal of
the dismissal of his claim. This avenue of redress for the alleged
improprieties at trial is far better suited to the matter at hand. As Presiding
Judge Read noted in her scholarly decision in Harvey v State of New York
(Ct Cl, June 1, 2000 [Claim No. 96808, Motion No. M-61057], Read, P.J., UID
#2000-001-019), only a truly exceptional case would necessitate vacating the
judgment of another judge after a full trial on the merits. This I decline to
Based upon the foregoing and it is:
ORDERED, that Claimant's motion is denied.