New York State Court of Claims

New York State Court of Claims

BILBREW v. THE STATE OF NEW YORK, #2004-031-027, Claim No. 101067, Motion No. M-67218


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: JAMES L. GELORMINI, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
May 4, 2004

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers, numbered 1 to 6, were read on motion by Claimant for an order of renewal of his claim:
1. Claimant's Notice of Motion, filed August 7, 2003;
2. Claimant's Affidavit, sworn to July 29, 2003;
3. Claimant's Memorandum of Law, dated July 29, 2003, with attached exhibits;
4. Affirmation of James L. Gelormini, Esq., dated August 25, 2003, with attached exhibit;
  1. Claimant's unsworn Reply, dated September 3, 2003;
6. Decision of the Honorable Edgar C. NeMoyer, filed November 27, 2001. The claim in this matter was tried before the Hon. Edgar C. NeMoyer and was dismissed by a Decision filed on November 27, 2001. Judgment was entered December 4, 2001. With this motion, Claimant, Michael Bilbrew, requests that I renew his claim and vacate the Decision and Judgment dismissing his claim.

In his underlying claim, Mr. Bilbrew sued the State for dental malpractice resulting from the removal of two teeth on September 21, 1998. Claimant argues that he should be granted a new trial because Defendant did not produce the oral surgeon that performed the operation and allegedly committed the malpractice.

Procedurally, I note that the Court of Claims Act § 9(8) ("CCA") 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 CPLR for a determination of how and under what circumstances that authority is to be exercised (see also Court of Claims Act § 9[9]). The section of the CPLR upon which a motion to renew can be based is § 4404(b).

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 date of the decision (see CPLR 4405; Kerner v Kerner, 262 AD2d 1081, lv dismissed, lv denied 94 NY2d 873). Claimant's time, therefore, within which to properly bring a motion to renew, expired on December 4, 2001. Claimant's motion was filed on August 7, 2003, more than a year and a half after the decision dated November 19, 2001.

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, he has failed to demonstrate that either the Court or Defendant had a duty to produce the doctor (not a State employee) who performed his oral surgery.

Further, 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 did appeal 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 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], 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, it is:

ORDERED, that Claimant's motion is denied.

May 4, 2004
Rochester, New York

Judge of the Court of Claims