New York State Court of Claims

New York State Court of Claims

BROWN v. THE STATE OF NEW YORK, #2004-009-07, Claim No. 104003, Motion No. M-67542


Synopsis


Case Information

UID:
2004-009-07
Claimant(s):
ANTONIO BROWN
Claimant short name:
BROWN
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
104003
Motion number(s):
M-67542
Cross-motion number(s):

Judge:
NICHOLAS V. MIDEY JR.
Claimant's attorney:
ANTONIO BROWN, Pro Se
Defendant's attorney:
HON. ELIOT SPITZER
Attorney General
BY: Joel L. Marmelstein, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant's attorney:

Signature date:
February 4, 2004
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant has brought this motion requesting that the Court " reconsider" its decision, dated September 17, 2003, which was made following the trial of this claim held on June 18, 2003 at Marcy Correctional Facility.

The following papers were considered by the Court in connection with this motion:
Motion to Reconsider, Affidavit in Support 1,2


Affirmation in Opposition 3

Response to Defendant's Opposition 4


Additional Submissions from Claimant, received 11/12/03 5

As set forth above, claimant has requested that this Court reconsider its prior trial decision, in which it dismissed the claim of claimant. In this claim, claimant sought damages for injuries suffered by him in an assault by his cell mate, while both were incarcerated at Marcy Correctional Facility. Claimant alleges negligence against the State for failing to remove a pair of State-issued, rubber-soled boots and a paper clip from the cell, and that such items were allegedly used against him by his assailant. Based upon the testimony of claimant's assailant[1], as well as correction officers who had responded to the incident, this Court found that claimant had not established, by a preponderance of the evidence, that the boots and paper clip were used in the attack against him, or that they were present in his cell at that time. Claimant now contends that the Court failed to consider evidence which claimant had presented in a prior motion for summary judgment[2] when making this determination.

Defendant's opposition to this motion rests solely on its contention that claimant's sole remedy lies in an appeal of this decision, in that there is no statutory authority authorizing a Court to reconsider a prior decision.[3] It is evident, however, that claimant intended this motion to be considered under the provisions of CPLR Rule 4404(b) which authorizes a Court, in its discretion, to set aside its decision.[4] This motion, therefore, will be considered under CPLR 4404(b).

Claimant contends that evidence submitted by him in his prior motion for summary judgment establishes that the work boots were present in his cell at the time of the assault. Such evidence was in fact considered by the Court in reaching its decision following the trial. When weighed against the testimony of claimant's assailant and the correction officers who testified, this Court, however, found that claimant had not established, by a preponderance of the evidence, that the boots were either in the cell or were used in the assault against him.

Additionally, and more importantly, the Court found that the assault against claimant was an unprovoked, unexplained attack that was not reasonably foreseeable, and therefore did not support a finding of negligence (see, Sanchez v State of New York, 99 NY2d 247).

Based on the foregoing, therefore, it is

ORDERED, that Motion No. M-67542 is hereby DENIED.


February 4, 2004
Syracuse, New York

HON. NICHOLAS V. MIDEY JR.
Judge of the Court of Claims





[1] At trial, the testimony of claimant's assailant was produced by his prior deposition testimony, since the assailant was deceased.
[2] See decision and order to Motion Nos. M-64642 and CM-64685, dated May 8, 2002 (Collins, J.).
[3] Defendant submits that this motion is akin to a motion to renew or reargue pursuant to CPLR Rule 2221, which is inapplicable to trial decisions.
[4] Claimant made reference to CPLR Rule 4404 in his "Response to Defendant's Opposition" (see Item 4), but there is no indication that such response was served upon the Assistant Attorney General.