New York State Court of Claims

New York State Court of Claims

GREEN v. STATE OF NEW YORK, #2006-037-019, Claim No. 104741, Motion No. M-71860


Synopsis



Case Information

UID:
2006-037-019
Claimant(s):
SHAWN GREEN
Claimant short name:
GREEN
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
104741
Motion number(s):
M-71860
Cross-motion number(s):

Judge:
JEREMIAH J. MORIARTY III
Claimant’s attorney:
Shawn Green, Pro Se
Defendant’s attorney:
Hon. Eliot Spitzer
New York State Attorney General
By: Joseph F. Romani, Esq.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
August 1, 2006
City:
Buffalo
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Pro se Claimant brings this motion for a directed verdict pursuant to CPLR 4404 (b). The


following were read and considered with respect to Claimant’s motion:

1. Claimant’s notice of motion filed June 9, 2006, and affirmation of Shawn Green

sworn to June 5, 2006,[1] with attached memorandum of law and exhibit;

2. Opposing affirmation of Assistant Attorney General Joseph F. Romani filed June 15,

2006, with attached exhibit A;

3. Claimant’s reply sworn to June 16, 2006.


Pro se Claimant Shawn Green alleged in his claim that a correction officer at Elmira Correctional Facility filed a false misbehavior report against him and that the hearing officer for the Tier III disciplinary hearing that followed was biased against him causing him to be wrongfully convicted of charges and sentenced to confinement in the Special Housing Unit (SHU) resulting in the loss of privileges and mental anguish. Following a trial of this matter held on March 29, 2006, this Court rendered a decision dismissing the claim and final judgment was entered thereon (Green v State of New York, Ct Cl, May 11, 2006, Moriarty, J., Claim No. 104741, UID #2006-037-504).

Claimant now moves for a directed verdict pursuant to CPLR 4404 (b). A motion under this article must be made within 15 days after decision, verdict or discharge of the jury pursuant to CPLR 4405. The 15-day period in a judge-tried case runs from the day on which the opinion was filed (see Bernstein v Swidunovich, 44 Misc 2d 728 [1964]). The decision of this Court was filed on May 19, 2006, more than 15 days before Claimant’s motion was brought. Therefore, Claimant’s motion for a directed verdict under CPLR 4404 has to be denied.

Where, as here, a proceeding has been reduced to final judgment and more than 15 days has elapsed, the proper procedural remedy to seek relief from the trial court is a motion pursuant to CPLR 5015 (Matter of Willard v Town Bd. of Town of Hamburg, 216 AD2d 861, 862 [1995]; see also Reed v County of Westchester, 243 AD2d 714 [1997]). CPLR 5015 (a) authorizes a court to vacate its judgment “upon such terms as may be just” on motion of any interested party with such notice as the court may direct, based upon five listed grounds: excusable default; newly discovered evidence; fraud, misrepresentation, or other misconduct of an adverse party; lack of jurisdiction; or reversal, modification or vacatur of a prior judgment or order upon which it is based. If the Court were to exercise its discretion and treat Claimant’s motion for a directed verdict as an application to vacate the judgment pursuant to CPLR 5015 (a), the facts and arguments proposed by Claimant are “not susceptible, even with a little push, of being lodged under a listed ground” (Siegel NY Prac § 426, at 725 [4th ed]). Because this motion contains no new evidence, Claimant is using this motion as a vehicle to reargue once again the very issues previously decided after trial.

Based on the foregoing, the Court is not authorized to grant the relief requested by Claimant. Accordingly, it is hereby

ORDERED, that Claimant’s motion for a directed verdict (M-71860) is denied.



August 1, 2006
Buffalo, New York

HON. JEREMIAH J. MORIARTY III
Judge of the Court of Claims




[1]. Pursuant to CPLR Rule 2106, only an attorney or a non-party doctor, osteopath or dentist authorized to practice in the State of New York may serve and file an affirmation in lieu of an affidavit. However, because Claimant’s affirmation has been sworn to before a notary, it shall be treated as an affidavit.