New York State Court of Claims

New York State Court of Claims

RHODES v. THE STATE OF NEW YORK, #2008-028-512, Claim No. 94100, Motion No. M-72798


Claimant’s motion to vacate a prior decision on the ground of newly discovered evidence (CPLR 5015[a][3]) is denied. The new evidence, even if fully credited, is irrelevant to the issue of defendant’s liability.

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: Roberto Barbosa, Esq.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
January 16, 2008

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read on claimant’s motion for an order vacating a prior decision and judgment:

1. Notice of Motion and Supporting Affidavit of Tony Rhodes, pro se, with annexed Exhibits;

2. Affirmation in Opposition of Roberto Barbosa, AAG, with annexed Exhibits;

3. Affidavit of Shawn Ross; and

4. Reply Affidavit of Tony Rhodes, pro se.

Filed papers: Claim; Answer; Decision, Rhodes v State of New York, UID #2001-019-017, Claim No. 94100, [Ct Cl August 14, 2001], Lebous, J.; Decision and Order, Rhodes v State of New York, UID #2001-019-578, Claim No. 94100, Motion No. M-64070 [Ct Cl December 3, 2001], Lebous, J.

This motion represents claimant’s second attempt to vacate or set aside the trial decision of former Court of Claims Judge Ferris D. Lebous (Decision, UID #2001-019-017, Claim No. 94100, [Ct Cl August 14, 2001]). The facts underlying the claim are set forth in that decision. At approximately 10:00 p.m. on November 6, 1995, at Woodbourne Correctional Facility, claimant was stabbed in the torso by another inmate while he was sitting at a table in the recreation room of his housing dorm. Some time earlier, and before claimant went into the recreation room, there had been a disturbance involving an inmate named Nelson. Nelson was removed by correction officers and taken to keeplock in another unit, and the officers brought back an inmate named Chun, who was being reassigned to Nelson’s former cell.

As claimant went through the dorm area to get to the recreation room, approximately 25 feet away, he observed that the two correction officers assigned to the unit were in the dorm area and that no officer was in the recreation room. Other testimony established that the officers were engaged in filling out paperwork connected to the incident involving Nelson, and Judge Lebous found that they were absent from the recreation room between five and twenty minutes.

Once in the recreation room, claimant sat at one of the picnic-style tables intending to watch television. He was aware that a verbal altercation had begun between two groups of inmates, an altercation that he estimated went on for six to eight minutes, but he was not particularly concerned since he was not involved in it in any way. The dispute then became violent, however; a table near claimant was overturned, several inmates fell on top of claimant, and in the ensuing confusion, he was stabbed. In response to the noise caused by physical disturbance, the two correction officers immediately came to the recreation room and subdued the participants. It was subsequently determined that the new resident, Chun, and another inmate named Ross had fallen on claimant during the skirmish, but it was not known which one had stabbed him.

In his decision, Judge Lebous found that claimant could not establish that the State was on notice that the attacker was an inmate known to be aggressive and violent and that there was no advance notice of an especially dangerous situation in the recreation room. In light of that, he determined, it had not been negligent for the correction officers to be absent for a short period of time. Concluding that claimant had failed to establish either that the State had notice of an especially dangerous situation yet failed to intervene or that it failed to exercise reasonable care in the supervision of the inmates of E-3 housing block, Judge Lebous dismissed the claim.

In claimant’s first effort to overturn the trial decision, a motion for reargument, he asserted that the Court had “overlooked an important piece of testimony,” specifically testimony (presumably claimant’s own) that there was serious tension in the housing area due to the earlier incident involving Inmate Nelson and, consequently, that an especially dangerous situation existed . In light of this, he argued, the correction officers would have had a duty to at least briefly check on the recreation area during the time after Nelson was removed. In response, Judge Lebous denied the motion, stating “Claimant's arguments offer nothing that warrants reconsideration of this Court's prior Decision and Order as they are essentially restatements of his prior arguments” (Rhodes v the State of New York, UID #2001-019-578, Claim No. 94100, Motion No. M-64070 [Ct Cl December 3, 2001], Lebous, J.)

In the instant motion, claimant seeks to have the trial decision vacated and his action reinstated because of “legal fraud and perjury” and newly discovered evidence. CPLR 5015 (a) authorizes a court to vacate its judgment “upon such terms as may be just” on motion of any interested party based upon one or more of five listed grounds: 1) excusable default; 2) newly discovered evidence; 3) fraud, misrepresentation, or other misconduct of an adverse party; 4) lack of jurisdiction; or 5) reversal, modification or vacatur of a prior judgment or order upon which it is based. The only grounds that could arguably be applicable in this case are the second (newly discovered evidence) and third (fraud, misrepresentation or other misconduct of an adverse party). There is no statutory time limit for bringing motions on either of these grounds although they must be made within a reasonable time (Green Point Sav. Bank v Arnold, 260 AD2d 543 [2d Dept 1999]).

Claimant’s argument that the outcome of his trial was brought about by fraud, misrepresentation or other misconduct rests on his allegations that his then-attorney provided inadequate assistance and that witnesses for the State perjured themselves. Only the latter allegations would be pertinent, as CPLR 5015(a)(3) provides for vacatur on this ground only with respect to the fraud, misrepresentation or misconduct of the opposing party, not one’s own representative (Pignataro v Pignataro, 9 AD3d 890 [4th Dept 2004]). Furthermore, allegations that the adverse party committed fraud or misrepresentation must provide something more than “broad, unsubstantiated allegations of fraud” (Aames Capital Corp. v Davidsohn, 24 AD3d 474 [2d Dept 2005]).

For relief to be granted because of newly discovered evidence, the evidence in question must be such that if it had been introduced at trial it “would probably” have produced a different result and it must be evidence that “could not have been discovered” in time to move for a new trial under CPLR 4404 (i.e., at any time prior to 15 days after the judgment was entered or the order was issued) (CPLR 5015[a][2]). Here, the new evidence that claimant presents is the affidavit of Shawn Ross, who had been another inmate at Woodbourne Correctional Facility at the time in question.[1] Ross states that he was stabbed in the back on the same night that Claimant was stabbed. Claimant states that he also has copies of Ross’ medical records which support this statement.

Counsel for Defendant argues that Ross’ statement is “wholly inconsistent” with documents and other evidence that has been produced (Barbosa affirmation, ¶¶ 21,22). It is not necessary to determine whether Ross is telling the truth, however, because, as counsel also points out, Claimant has set forth no theory under which it would be material to the outcome of the trial whether or not Ross had also been stabbed (id. ¶¶24-25). In fact, from the DIN number given on Ross’s affidavit and in a discovery response provided by defendant (Barbosa affirmation, Exhibit 3), it appears that Shawn Ross was the inmate who, along with inmate Chun, fell on claimant. If so, his affidavit could do little beyond confirming what is already known: that there was an altercation in the recreation room; that Chun, Ross and claimant wound up in a sort of collision; and that someone in that group had a knife. Whether the knife cut only claimant or both claimant and Ross is simply irrelevant to the issue of defendant’s liability.

Claimant’s motion is DENIED.

January 16, 2008
Albany, New York

Judge of the Court of Claims

[1]. From the DIN number given on Ross’s affidavit and in a discovery response provided by defendant (Barbosa affirmation, Exhibit 3), it appears that Shawn Ross was the inmate who, along with inmate Chu, fell on claimant.