New York State Court of Claims

New York State Court of Claims

H'SHAKA v. THE STATE OF NEW YORK, #2005-028-580, Claim No. 94645, Motion No. M-70057


Motion to modify a prior order of the Court (CPLR 5015[b]), brought four years after a trial decision was rendered and judgment was issued, is denied. The evidence that Claimant now seeks to introduce was readily available before the case was tried and the motion was not brought within a reasonable time.

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: Paul F. Cagino, Esq.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
December 2, 2005

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read on Claimant's motion for a decision modifying a prior order of this Court:

1. Notice of Motion and Supporting Affidavit of Imhotep H'Shaka, pro se

2. Affidavit in Opposition (captioned "Notice of Cross-Motion") of Paul F. Cagino, AAG, with annexed Exhibits

3. (Reply) Affidavit of Imhotep H'Shaka, pro se

Filed papers: Claim; Answer; Heath v State of New York,[1] Decision, Claim No. 94645, filed January 8, 2001, Sise, J.

Following trial of this bailment action, Claimant was awarded $328.57, with interest from March 4, 1996, as the reasonable, proven value of property that he lost as a result of the State's negligence. No amount was awarded for stenographic transcripts or other legal papers that, according to Claimant, were among the missing items. Although Claimant was able to describe the missing documents in some detail and to explain his need for a complete transcript, he failed to provide a realistic assessment of what it would cost to replace the lost pages. The Court also noted that Claimant might be able to obtain a copy of the criminal trial transcript, without charge, by availing himself of the provisions of CPLR 1101 and 1102.

Claimant now moves for an order vacating so much of the prior decision as denied compensation for the missing transcript and awarding the sum of $40.00, the amount that it would cost to receive a copy of the transcript, according to the Westchester County Court. Claimant had written to that court to inquire about the cost in January 2005 (H'Shaka affidavit, Exhibit A), well after he instituted his claim and four years after judgment had been entered. He does not, however, provide any explanation for why he failed to secure that evidence earlier and present it at his trial. As to the possibility of acquiring a transcript free of cost if he is granted poor person status (CPLR 1101), Claimant states that although he had received the original transcript for free "he will have to pay to receive them again" (H'Shaka reply affidavit, ¶ 5).

Because judgment has been entered in this action, the instant motion is an application under CPLR 5015. The grounds on which relief from a judgment or order can be granted are set forth in the statute, and they are exclusive. These grounds are:

1) excusable default

2) 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[2]

3) fraud, misrepresentation, or other misconduct of an adverse party

4) lack of jurisdiction to render the judgment or order; or

5) reversal, modification or vacatur of a prior judgment or order upon which it is based.

The only one of these grounds that could arguably be applicable to the instant situation is (2) "newly-discovered evidence which, if introduced at the trial, would probably have produced a different result." As noted above, the Court declined to make an award for the value of the lost transcript because Claimant failed to provide anything other than a general – "and in the court's view, unrealistic" – guess about the cost of replacement.

If Claimant had presented the letter from the Westchester County Court at trial, it is probable that an award would have been made for this item of damage. Claimant cannot meet the second part of this requirement, however: the requirement that the newly-discovered evidence be something that "could not have been discovered in time to move for a new trial under section 4404." There was nothing to prevent Claimant from obtaining the statement of replacement cost prior to trial or immediately after receiving a copy of the decision. Instead, he has waited four years to even request the modification. Claimant is not entitled to the relief he seeks because the evidence on which he relies was readily available to him before trial and he failed to seek relief from the judgment within a reasonable time, (see Kleet Lber. Co., Inc. v Saw Horse Remodelers, Inc., 13 AD3d 414 [2d Dept 2004]; City of Albany Indus. Dev. Agency v Garg, 250 AD2d 991 [3d Dept 1998]).

Claimant's motion is DENIED.

December 2, 2005
Albany, New York

Judge of the Court of Claims

[1] Claimant states that his name was legally changed after the Claim was filed.
[2] Post trial motions to set aside a verdict or decision (CPLR 4404) must be made within fifteen days after decision, verdict or discharge of the jury (CPLR 4405).