New York State Court of Claims

New York State Court of Claims

GREEN v. THE STATE OF NEW YORK, #2008-044-591, Claim No. 109512, Motion No. M-75389


Claimant’s motion to vacate Court’s previous decision and enter directed verdict pursuant to CPLR 4404(b) denied as untimely; claimant also found not to be entitled to relief under CPLR 5015.

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:
HON. ANDREW M. CUOMO, ATTORNEY GENERALBY: James E. Shoemaker, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
December 2, 2008

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant, an inmate appearing pro se, filed this claim alleging that he was denied the opportunity for recreation while incarcerated at Southport Correctional Facility (Southport) due to wearing a braided hairstyle, that he was denied a diabetic diet for six days upon his transfer to that facility, and that he experienced a delay in receiving his prescription medications.[1] Claimant thereafter filed a “supplemental” claim adding two bailment causes of action, the first identified as facility claim # 630-029-04, for property allegedly lost during claimant’s transfer from Green Haven Correctional Facility to Southport, and the second identified as facility claim # 630-054-04, for a Mother’s Day card which was returned opened and damaged. Defendant answered and asserted various affirmative defenses. A trial in this matter was conducted on March 12, 2008 at Elmira Correctional Facility. In compliance with the Court’s directive at trial, defendant thereafter submitted copies of the logbook entries for the first month that claimant was incarcerated at Southport.[2] The Court issued a Decision dated June 10, 2008 and filed on July 10, 2008 which dismissed claimant’s causes of action for denial of recreation, denial of a diabetic diet, and damage of the Mother’s Day card. The Court also awarded claimant damages in the amount of $25 for medical negligence based upon the withholding of his prescription medication, and damages in the amount of $35, plus the appropriate statutory interest from April 11, 2004, for the loss of his personal property during his transfer to Southport. Claimant now moves pursuant to CPLR 4404 (b) for the Court to vacate its prior decision, and to enter judgment in his favor as a matter of law. Defendant opposes the motion.

A motion pursuant to CPLR 4404 must be made within 15 days after decision, verdict or discharge of the jury (see CPLR 4405), and in an action tried by the Court, that 15-day period runs from the day on which the opinion was filed (see Gross v State of New York, 32 AD2d 598 [1969]; Bernstein v Swidunovich, 44 Misc 2d 728 [1964]). Claimant’s motion was made when he mailed the notice of motion and supporting papers to the Attorney General’s Office (CPLR 2103; see e.g. Matter of Unigard Ins. Group v State of New York, 286 AD2d 58 [2001]). Defendant has included, as an exhibit to its opposition papers, a photocopy of the envelope in which claimant’s motion was received which indicates that this motion was mailed on August 8, 2008 (Affirmation of Assistant Attorney General (AAG) James E. Shoemaker, Esq., Exhibit B). The decision of the Court was filed on July 10, 2008, clearly more than 15 days prior to the date claimant made his motion. Claimant’s motion for a directed verdict under CPLR 4404 is untimely, and is therefore 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” (Green v State of New York, Ct Cl, Aug. 1, 2006, Moriarty, III, J., Claim No. 104741, Motion No. M-71860 [UID # 2006-037-019]; see Hill v State of New York, 29 AD2d 824 [1968]; see also Matter of Reed v County of Westchester, 243 AD2d 714 [1997]; Matter of Willard v Town Bd. of Town of Hamburg, 216 AD2d 861, 862 [1995], lv dismissed and denied 87 NY2d 917 [1996]). To the extent that claimant may be requesting this relief, it must also be denied. CPLR 5015 (a) authorizes a court to vacate its judgment “upon such terms as may be just,” if the moving party establishes that there has been 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.

In this motion, claimant argues that the Court erroneously relied on the logbook entries submitted after trial, that the damages awarded for defendant’s delay in providing him with his prescription medicine were “unreasonably inadequate,” and that he should have been compensated for the delay in implementation of his diabetic diet, the damage to the Mother’s Day Card, and for lost property covered by facility claim #630-42-04.[3] Claimant is merely advancing arguments that were previously considered and rejected by the Court, and he has completely failed to set forth evidence to satisfy any of the statutory grounds to set aside the judgment. Accordingly, claimant is not entitled to relief under CPLR 5015 (see Green v State of New York, Ct Cl, Aug. 1, 2006, Moriarty, III, J., Claim No. 104741, Motion No. M-71860

[UID # 2006-037-019], supra).

Claimant’s Motion No. M-75389 is denied in its entirety.

December 2, 2008
Binghamton, New York

Judge of the Court of Claims

The following papers were read on claimant’s motion:

1) Notice of Motion filed on July 28, 2008; Affidavit of Shawn Green sworn to on July 21, 2008; Memorandum of Law dated July 21, 2008.

2) Affirmation in Opposition of James E. Shoemaker, AAG, dated September 2, 2008, and attached Exhibits A and B.

3) Reply of Shawn Green sworn to on September 16, 2008.

Filed papers: Claim filed on June 21, 2004; Supplemental Claim filed on July 19, 2004; Verified Answer filed on July 23, 2004; Verified Answer to Supplemental Claim filed on August 16, 2004.

[1]. The Court previously dismissed that portion of the claim which alleged a failure to provide barber services in conformance with a medically-ordered clipper permit (Green v State of New York, Ct Cl, Feb. 4, 2008, Schaewe, J., Claim No. 109512, Motion No. M-74167 [UID # 2008-044-504]).
[2]. The Court reviewed the logbook entries in camera, and finding that they contained information concerning inmate movement, ordered the entries sealed (Green v State of New York, Ct Cl, June 10, 2008, Schaewe, J., Claim No. 109512 [UID # 2008-044-009], n 6). However, the Court did utilize the pertinent information therein which pertained to claimant’s cause of action for denial of recreation.
[3]. The Court notes that claimant’s previous application to serve a second supplemental claim which included this bailment cause of action was denied without prejudice (Green v State of New York, Ct Cl, Sept. 27, 2004, Lebous, J., Claim No. 109512, Motion No. M-68999 [UID No. 2004-019-579]). In claimant’s subsequent motion for renewal of that application – which was denied – the Court specifically noted that a bailment cause of action based upon facility claim # 630-42-04 was time-barred at that point (Green v State of New York, Ct Cl, Feb. 3, 2005, Lebous, J., Claim No. 109512, Motion Nos. M-69070, M-69431 [UID # 2005-019-507]).