New York State Court of Claims

New York State Court of Claims

SMITH v. THE STATE OF NEW YORK, #2008-041-040, Claim No. 107660, Motion No. M-75536


Claimant’s motion to vacate judgment of dismissal after trial on the basis of newly discovered evidence is denied where claimant fails to show that the purported evidence is newly discovered or that it would have changed the trial’s outcome.

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:
New York State Attorney GeneralBy: Stephen J. Maher, Esq., Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
October 16, 2008

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant moves pursuant to CPLR 5015 (a) (2) to vacate the Decision filed May 2, 2007 which dismissed this slip and fall claim after trial. The claim was dismissed because claimant “presented no evidence as to what caused his slip, upon what he slipped, the condition of the stair or set of stairs at the time of his fall, or the condition of the stair or set of stairs at any time prior to his fall.” McKinney's CPLR 5015 (a) provides that:
“The court which rendered a judgment or order may relieve a party from it upon such terms as may be just, on motion of any interested person with such notice as the court may direct, upon the ground of:

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 4404 . . .”
In S.A.B. Enters. v. Stewart's Ice Cream Co. (242 AD2d 845, 845-846 [3d Dept 1997], lv dismissed 91 NY2d 848 [1997]), the relevant considerations in determining a CPLR 5015 (a) (2) motion are set forth:
“It is well settled that in order to vacate a judgment based upon newly discovered evidence, the movant must establish that the new evidence, if introduced at trial, would probably have produced a different result and that such evidence could not, despite due diligence, have been discovered in time to move for a new trial under CPLR 4404 . . . Such an application is addressed to the trial court’s discretion . . . and, absent an abuse of that discretion, the court’s ruling will not be disturbed . . .”
Claimant alleges that the newly discovered evidence consists of an inmate injury report, three medical reports and a copy of his grievance file regarding “negligent yard conditions.”

Claimant states that at the trial of his claim he:
“[I]n fact stated on record to the Court briefly that he was unable to present any evidence at trial due to the fact that Guards in Green Haven Correctional Facility filed tier III charges against Plaintiff in an effort of getting him out of that jail, at which time they confiscated all claimant’s legal papers in an attempt of locating any evidence which could lead them to any criminal charges against Plaintiff.”
Initially, the Court has searched the trial record and found that claimant made no such statement. After being advised of how the trial would proceed and of the fact that the Court could only consider evidence presented at the trial, claimant responded that he understood and had no questions of the Court. Immediately prior to commencement of his testimony, in response to a motion by the defendant, claimant stated that he just wanted to get the trial over with. At the conclusion of his case, claimant stated that he was glad he had been able to give his story and get it over with.

Claimant said nothing at trial about an inmate injury report or medical records having been taken from him by defendant and stated with respect to his grievance (filed a year after the incident) that he “was unable to find my grievance papers.” The nature of the documents identified by claimant suggests that defendant would have had copies of the records. Claimant did not request an adjournment to obtain the records and did not subpoena the records for the trial.

These matters aside, it is apparent that claimant’s objective in making the motion is to attempt to cure the deficiencies of his trial testimony: “Plaintiff wasn’t clear as to what the Presiding Justice was looking for to assist him in reaching a favorable decision. That has changed.”

The Court finds that the documents identified by claimant do not constitute newly discovered evidence since claimant was both aware of the evidence prior to the trial and “was aware of the evidence in time to move for a new trial (see, CPLR 4404, 4405) and, therefore, relief pursuant to CPLR 5015 (a) (2) is not available” (Elmore v Elmore, 208 AD2d 1134, 1135 [3d Dept 1994]).

Even were the Court to consider the documents to be newly discovered evidence, the production of the documents at trial would not have produced a different result. None of the documents demonstrate that defendant either created or had actual or constructive notice, prior to the accident date of March 23, 2002, of any condition which allegedly caused claimant to fall (Heliodore v State of New York, 305 AD2d 708, 709 [3d Dept 2003]; Diaz v State of New York, 256 AD2d 1010 [3d Dept 1998]; Keir v State of New York, 188 AD2d 918, 919 [3d Dept 1992]).

The claimant’s motion to set aside judgment of dismissal is denied.

October 16, 2008
Albany, New York

Judge of the Court of Claims

Papers Considered:

  1. Claimant’s Notice of Motion, filed September 15, 2008;
  2. Affidavit of Julio Isley Smith, sworn to August 9, 2008 and attached exhibits;
  3. Affirmation of Stephen J. Maher, dated October 1, 2008.