New York State Court of Claims

New York State Court of Claims

SCRITCHFIELD v. THE STATE OF NEW YORK, #2003-031-072, Claim No. 100559, Motion No. M-66299


Claimant's motion to set aside judgment and grant a new trial is denied

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant's attorney:
Defendant's attorney:
New York State Attorney General
BY: WILLIAM D. LONERGAN, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
September 17, 2003

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers, numbered 1 to 6, were read on motion by Claimant for an order requesting reconsideration of a judgment dismissing his claim:
1. Claimant's Notice of Motion, filed December 24, 2002;
2. Unsworn Affidavit of Michael J. Cooper, Esq., dated December 20, 2002;
3. Supplemental Affidavit of Michael J. Cooper, Esq., sworn to May 13, 2003, with attached exhibits;
  1. Affidavit of William D. Lonergan, Esq., sworn to May 22, 2003, with attached exhibits;
5. Defendant's Memorandum of Law, dated May 22, 2003;
6. Filed documents: Claim; Answer; Order of the Honorable Edgar C. NeMoyer, filed December 6, 2002; Judgment of Dismissal dated December 13, 2002.The claim in this matter was tried before the Hon. Edgar C. NeMoyer on November 12 and 13, 2002. After an Order of Judge NeMoyer was filed on December 6, 2002, the claim was dismissed by a Judgment dated December 13, 2002. With this motion, Claimant, Jayson C. Scritchfield, requests that I vacate the judgment of dismissal and grant Claimant a new trial. Procedurally, I note that Claimant's motion, which has been adjourned several times with the consent of both parties, was originally filed on December 24, 2002, and is, therefore, timely under the terms of CPLR § 4404 (b). CPLR § 4405 provides that a motion such as this "shall be made before the judge who presided at the trial within fifteen days after decision, verdict or discharge of the jury." Judge NeMoyer retired from the bench on December 31, 2002 and thus the motion has not and cannot be made to the judge who presided at trial.

In his underlying claim, Mr. Scritchfield alleged that, on June 10, 1998, he was injured in a motor vehicle accident that was caused by the negligence of employees of the New York State Department of Transportation ("DOT"). Specifically, Claimant alleges that, at approximately noon on that date, he was operating a Mack dump truck on Route 83 near Zahm Road in the Town of Arkwright, New York. As he approached a culvert, he noticed a DOT paver coming toward him over the culvert. Claimant alleges that the paver's traveling lane on Route 83 was too narrow to accommodate the paver and that at least part of the paver had crossed the center line into Claimant's lane of travel. Claimant further alleges that the culvert itself was too narrow to accommodate both his vehicle and the paver at the same time. To avoid what Claimant believed to be an imminent collision with the paver, Claimant attempted to turn right on Zahm Road, which intersects Route 83 just before the culvert. Claimant's vehicle, unable to negotiate the turn, flipped over and struck a utility pole, causing personal injuries to Claimant. Claimant was not licensed to be operating the vehicle he was driving and he was cited for, and pled guilty to, unlicensed operation.

Claimant sets forth two reasons that he believes Judge NeMoyer's decision should be vacated. First, he alleges that the trial court improperly permitted Defendant's expert to testify after Defendant had failed to adequately respond to Claimant's expert witness demands. Second, he alleges that the trial court improperly credited Defendant's witness's testimony that there was enough room on the culvert to accommodate both vehicles at the same time. Claimant asserts that his expert's uncontroverted testimony regarding the width of the bridge, the driving lanes, and the vehicles involved proves that it was a physical impossibility for both vehicles to be on the culvert at the same time.

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 the testimony presented was so compelling that Judge NeMoyer had no choice but to rule in Claimant's favor. Indeed, I find ample justification for the way in which the Court ruled. Among these are the testimony of Defendant's fact witnesses and the testimony of Defendant's expert that the culvert was wide enough to accommodate both vehicles. There were also warning signs on the road that Claimant failed to note and adhere to. I would also note that Claimant's expert's testimony was based upon measurements of the vehicles and roadway. The accuracy of these measurements was cast into doubt by Defendant and Defendant's expert. Furthermore, Claimant's expert's testimony regarding measurements and distances was also controverted by Defendant's expert, who explained that if Claimant's expert's assumptions regarding speed and distances of the vehicles was accurate, the paver would have cleared the culvert before Claimant's vehicle reached it.

With regard to Claimant's assertion that Defendant's expert should not have been permitted to testify, I note that CPLR § 3101(d)(1)(i) does not require preclusion and permits a great deal of discretion to the trial court with regard to handling any objections relating to the adequacy of expert disclosure. I find that Judge NeMoyer's refusal to preclude Defendant's expert from testifying was not an abuse of this discretion.

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."
An appeal of the dismissal of his claim is Claimant's best avenue of redress for the alleged improprieties at trial. As Judge Susan Phillips 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 do.

Based upon the foregoing and it is:

ORDERED, that Claimant's motion is denied.

September 17, 2003
Rochester, New York

Judge of the Court of Claims