New York State Court of Claims

New York State Court of Claims

LONG v. THE STATE OF NEW YORK, #2004-028-501, Claim No. 106274, Motion No. M-67467


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:
BY: Leslie A. StrothAssistant Attorney General
Third-party defendant's attorney:

Signature date:
January 29, 2004

Official citation:

Appellate results:

See also (multicaptioned case)


The Court, in reaching its decision, has read and considered the following papers:

(1) Notice of Motion to Renew, dated September 30, 2003 and filed on September 30, 2003;

(2) Affirmation of Barry C. Scheck in Support, dated September 30, 2003 and filed on September 30, 2003, together with Memorandum of Law and Exhibits 1-4 [unnumbered] annexed thereto (hereinafter referred to as the "Scheck Affirmation");

(3) Affirmation in Opposition of Leslie A. Stroth, Assistant Attorney-General, dated October 7, 2003 and filed on October 9, 2003, together with Exhibits "A-I" (hereinafter referred to as the "Stroth Affirmation");

(4) Affirmation of Barry C. Scheck in Reply dated October 16, 2003 and filed October 20, 2003 (hereinafter referred to as the "Reply Affirmation");

(5) letter of Leslie A. Stroth, Assistant Attorney-General dated October 27, 2003 (hereinafter referred to as the "Stroth Letter");

(6) letter of Brandon Garrett dated October 29, 2003 (hereinafter referred to as the "Garrett Letter").

Filed papers:

(1) Claim No. 106274 filed June 26, 2002;

(2) Original Motion #M-66092 and Supporting Papers;

(3) Decision and Order of the Hon. Richard E. Sise, dated August 18, 2003 and filed on September 3, 2003.

On September 3, 2003, the court granted the State's Cross-Motion, dismissing the instant claim. [1] The attorney for the Claimant now moves to renew based upon newly discovered evidence. The attorney argues that newly discovered documents indicate that the date of the decision of Judge Golia was June 28, 2000, and not June 23, 2000 as the Court found in its earlier decision (Scheck Affirmation, p 2). Mr. Scheck affirms that the new documents were obtained from the City of New York in a federal lawsuit and that his office had not previously been aware of their existence. The documents consist of: (1) log sheets of the Supreme Court, Queens County dated June 28, 2000; (2) an indictment sheet which had notations and Judge Golia's signature dated "6-29-00"; and (3) a Certificate of Disposition of the Court Clerk signed June 2, 2003.

The attorney for the Defendant argued that in order to succeed on a Motion to Renew, Claimant's attorneys must provide a reasonable excuse for their failure to submit the newly discovered evidence at the time of the original motion. Defendant's attorney also alleges that the Court's decision articulated other reasons for dismissing the claim and that even if the Court finds that the claim was timely filed, the present application must still be denied (Stroth Affirmation, pp 2-7 [unpaginated]).

CPLR Rule 2221(e) provides in pertinent part as follows:
A Motion for leave to renew:
(2) shall be based upon new facts not offered on the prior motion that would change the prior determination ...; and
(3) shall contain reasonable justification for the failure to present such facts on the prior motion.

In their reply papers, the attorneys for the Claimant do not take issue with the State's contention that they are required to offer a reasonable excuse for failing to submit the documents at the time of the original motion, however, they argued that they did everything possible to determine the true date of filing (Reply Affirmation, p 4). In fact, they go so far as to shift the blame for failing to find the documents to Judge Golia's chambers, which they allege "...never provided claimant with any of the three documents claimant now submits." (Reply Affirmation, p 4). They also allege that the chambers apparently "inadvertently misplaced" the documents (Reply Affirmation, p 4).

Aside from their opinion that they did everything possible, they have failed to provide the Court with any facts that would substantiate their opinion. Accordingly, the Court finds that they have failed in their burden of establishing a reasonable excuse for their failure to find these documents [CPLR Rule 2221(e)(3)]. They cannot rely upon Judge Golia's chambers to conduct their discovery for them.

The Court also finds that even if these documents were considered as "newly discovered," they still would not change this Court's prior determination that the statute of limitations began to run on June 23, 2000, the date of Judge Golia's Order dismissing the accusatory instrument and vacating the judgment of conviction. The first two documents are merely notations made by Judge Golia that do not unequivocally indicate the date from which the statute of limitations ran. The remaining document is a certification by the Court Clerk as to her opinion as to when the dismissal took place.

It is noteworthy that Claimant's attorneys now seek to have this Court treat Judge Golia's "short form" (Reply Affirmation, p 1 as a mere draft - however- in the original motion counsel argued that this document was at least a "decision" or "clear decision," but that it was incomplete (Reply Affirmation of Barry Scheck filed March 24, 2003, p 8, pp 14-18). In any event, Judge Golia's original decision is clearer than any of the newly proffered ones.

It should also be noted, however, that even if the Court were to find that the filing was timely, it still could not countenance the improper verification. Accordingly, the Court is constrained to deny the Motion.

January 29, 2004
Albany, New York

Judge of the Court of Claims

[1] A complete factual and procedural history is found in the Court's prior decision on the Cross-Motion to Dismiss.