1. Notice of motion and supporting affidavit of pro se Claimant, Jose A.
sworn to December 26, 2006, with annexed Exhibits 1-4;
2. Opposing affirmation of Assistant Attorney General Joseph F. Romani
February 2, 2007, with annexed Exhibit A.
Filed papers: Claim filed March 24, 2003; Answer filed April 11, 2003.
Pro se Claimant Jose A. Santiago alleged in claim 107523 that Defendant’s
agents negligently lost his personal property while he was in the custody of the
New York State Department of Correctional Services (DOCS) at Elmira Correctional
Facility (Elmira). Following a trial of the matter held on November 1, 2006, the
Court rendered a decision dismissing the claim and final judgment was entered
thereon (Santiago v State of New York, Ct Cl, November 30, 2006,
Moriarty, J., Claim No. 107523, UID # 2006-037-520; Judgment entered December 7,
2006). A notice of appeal from the judgment was filed on December 14, 2006, and
an amended notice of appeal was filed on December 29, 2006.
Claimant now seeks leave to reargue his claim pursuant to CPLR 2221 (d). This
remedy is not applicable, however, as it applies only to prior motions. When a
decision has been rendered following trial and the decision has been reduced to
a final judgment and more than 15 days has
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 ; Matter of
Reed v County of Westchester
, 243 AD2d 714 ). CPLR 5015 (a) authorizes
a court to vacate its judgment “upon such terms as may be just” on
motion based upon listed grounds: excusable default; newly discovered evidence;
fraud; misrepresentation, or other misconduct; lack of jurisdiction; or
reversal, modification or vacatur of a prior judgment upon which it is
If the Court were to exercise its discretion and treat Claimant’s motion
to reargue as a motion to vacate the judgment pursuant to CPLR 5015, the facts
and arguments raised by Claimant in his motion papers are simply “not
susceptible, even with a little push, of being lodged under a listed
ground” (Siegel, NY Prac § 426, at 725 [4th ed]). Because the motion
contains no new evidence, Claimant is using this motion as a vehicle to reargue
the very issues decided after trial. Accordingly, it is hereby
ORDERED, that Claimant’s motion (M-72777) is denied.