New York State Court of Claims

New York State Court of Claims

SMITH v. THE STATE OF NEW YORK, #2007-038-553, Claim No. 107568, Motion No. M-73609


Motion for “reconsideration of judgment” following decision after trial denied as procedurally improper and lacking in substantive merit.

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:
ANDREW M. CUOMO, Attorney General of the State of New York
By: Michael C. Rizzo, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
August 2, 2007

Official citation:

Appellate results:

See also (multicaptioned case)


The trial of this claim was conducted on March 26, 2007. Thereafter, the Court filed a decision on May 15, 2007 dismissing the claim because, inter alia, claimant’s testimony that he had slipped on ice and fallen and sustained injuries was unsubstantiated by any other evidence, and was undermined by contrary credible evidence. A judgment dismissing the claim was entered on May 22, 2007. Claimant now submits a “motion for reconsideration of judgement,” in which he contends that it was not within his “power” to offer supporting medical records and other documentary evidence at his trial. He offers documents that tend to support his testimony regarding his fall and claimed injuries. He asserts that he “adequately submitted” the aforementioned documents to the Assistant Attorney General at the time of the trial, but that they were never “entered as supporting evidence.”

At the threshold, there is no procedural device entitled a “motion for reconsideration of judgement.”[1] Claimant’s avenue for review of this Court’s decision after trial lies in the Appellate Division, and indeed, the Court is advised that claimant has, in fact, filed a notice of appeal. To the extent claimant’s post-trial motion may be construed as a motion for relief from the judgment pursuant to CPLR 5015, claimant has not presented or argued any of the statutorily enumerated grounds entitling him to such relief (see CPLR 5015 [a]; Green v State of New York, UID #2006-037-019, Claim #104741, Motion No. M-71860, Moriarty, J. [Aug. 1, 2006]). Were the Court to view claimant’s motion as one to set aside the decision and judgment pursuant to CPLR 4404 (b), it cannot be considered because it was untimely made, having been filed on June 22, 2007, more than fifteen days after this Court’s decision was filed (see CPLR 4405; Green v State of New York, supra; Bernstein v Swidunovich, 44 Misc 2d 728 [Sup Ct NY County 1964]).

Moreover, the relief claimant seeks – admission of documents into evidence that were not offered into evidence during the trial – would not be granted even if the motion pursuant to CPLR 4404 had been timely made. Relief pursuant to CPLR 4404 (b) is a matter within the discretion of the Court (see Matter of Esterle v Dellay, 281 AD2d 722, 724 [3d Dept 2001]; Carney v Carney, 236 AD2d 574 [2d Dept 1997]). Neither claimant’s status as a pro se litigant nor his claimed misperception that his submission of documents to the Assistant Attorney General would be a sufficient tender to the Court to warrant an exercise of discretion in favor of claimant. The Court expressly instructed claimant at trial that neither the claim nor its supporting documents were in evidence, and that claimant would have to offer them into evidence to have them considered as such. Notably, claimant offered a number of documents into evidence, demonstrating his awareness of both the necessity and procedure for offering evidence to the Court. Thus, his failure to offer the records that he had given to the Assistant Attorney General cannot be attributed to a lack of knowledge or “power” on the part of this claimant that persuades the Court to exercise its discretion to grant a motion to set aside the decision and judgment. In addition, even if the Court were to consider the evidence claimant now seeks to put before the Court, the ultimate decision and judgment by this Court would be unaffected because the proffered evidence is not relevant to the issue of whether defendant created or had notice of the dangerous condition that allegedly caused claimant to slip and fall, which the Court found that claimant failed to prove (Smith v State of New York, UID # 2007-038-103, Claim # 107568, DeBow, J. [Apr. 30, 2007]). In other words, even if the Court were to accept these documents and be persuaded by them that claimant did, in fact, slip and fall and sustain injury on December 4, 2002, the claim would nevertheless be dismissed due to claimant’s failure to demonstrate that defendant either created or had actual or constructive notice of the dangerous condition. The fact that the admission of those documents would not change the outcome of the Court’s prior decision further persuades the Court not to exercise its discretion in this instance.

The same reasons – the lack of a justifiable excuse for the failure to offer the documents to the Court at trial, and the lack of impact such documents would have upon the ultimate result – persuade the Court not to exercise its “inherent power to vacate its own judgment for sufficient reason and in the interests of substantial justice” (Boyd v Town of N. Elba, 28 AD3d 929, 931 [3d Dept 2006], lv dismissed 7 NY3d 783 [2006] [internal quotes and citations omitted]).

Accordingly, Motion No. M-73609 is DENIED.

August 2, 2007
Albany, New York

Judge of the Court of Claims

Papers considered

(1) Judgment, entered May 22, 2007;

(2) Decision, filed May 15, 2007;

(3) Notice of Motion for Reconsideration of Judgement, dated June 5, 2007;

(4) Affidavit in Support of Bruce Lee Smith, Sr., sworn to June 5, 2007, with exhibits;

(5) Affidavit in Opposition of Michael C. Rizzo, AAG, sworn to June 27, 2007.

[1]. In defendant’s opposition papers to claimant’s motion, defendant assumes that claimant is “seeking to renew and/or reargue the Court’s decision” (Rizzo Affidavit in Opposition, at ¶ 3). While claimant’s motion does not recite any authorizing statutory provision, it cannot be construed as a motion under CPLR 2221 (d) or (e) because CPLR 2221 governs motions to reargue or renew a prior motion, and not a trial decision (see Tafari v State of New York, UID # 2005-019-591, Claim No.102137, Motion No. M-70997, Lebous, J. [Dec. 22, 2005]).