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