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
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
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 ; Bernstein v
Swidunovich, 44 Misc 2d 728 ). 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 ). 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
; see also Matter of Reed v County of Westchester, 243 AD2d 714
; Matter of Willard v Town Bd. of Town of Hamburg, 216 AD2d 861,
862 , lv dismissed and denied 87 NY2d 917 ). 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
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.
. 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
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,
Cl, Feb. 3, 2005, Lebous, J., Claim No. 109512, Motion Nos. M-69070, M-69431
[UID # 2005-019-507]).