Post-trial motion for reconsideration/reargument denied.
|Claimant short name:||BELOT|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||CATHERINE C. SCHAEWE|
|Claimant's attorney:||JEAN BELOT, pro se|
|Defendant's attorney:||HON. ERIC T. SCHNEIDERMAN, ATTORNEY
BY: Aaron J. Marcus, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||October 3, 2017|
|See also (multicaptioned case)|
Claimant, a self-represented litigant,(1) filed this claim to recover for personal injuries allegedly received when he was assaulted by a fellow inmate, Eduardo Latorres, on August 13, 2008 while both were in custody at Elmira Correctional Facility (Elmira). Defendant State of New York (defendant) answered and asserted several affirmative defenses. After trial of the matter was held on April 11, 2017, the Court issued a Decision finding that claimant failed to establish a prima facie case of negligence and dismissed the claim in its entirety (Belot v State of New York, UID No. 2017-044-005 [Ct Cl, Schaewe, J., May 2, 2017]). Claimant now moves for reconsideration/reargument. Defendant opposes the motion.
As an initial matter, the Court notes that there is no such procedural device as a motion for reconsideration nor is a motion for reargument available following a Decision rendered after a non-jury trial (see e.g. Booth v State of New York, UID No. 2015-015-049 [Ct Cl, Collins, J., Apr. 22, 2015]). The proper procedural vehicle in this case is a post-trial motion pursuant to CPLR 4404 and the Court will treat this motion as such. A motion pursuant to CPLR 4404 must be made within 15 days after decision or verdict (see CPLR 4405), and in this action tried by the Court, the 15-day period runs from the day on which the opinion was filed (see Gross v State of New York, 32 AD2d 598 [3d Dept 1969]; Bernstein v Swidunovich, 44 Misc 2d 728 [Sup Ct NY County 1964]). The Decision in this matter was filed on May 16, 2017. However, claimant's motion was made on June 15, 2017 when he mailed the notice of motion and supporting papers to the Attorney General's Office (see e.g. Matter of Unigard Ins. Group v State of New York, 286 AD2d 58 [2d Dept 2001]). Because claimant has failed to establish good cause for failing to timely make this motion, it may be denied solely on this basis (see Turco v Turco, 117 AD3d 719, 723 [2d Dept 2014]; Coutrier v Haraden Motorcar Corp., 237 AD2d 774 [3d Dept 1997]).(2)
Even if this motion was timely, it would nevertheless be denied on the merits. Pursuant to CPLR 4404 (b), a Court sitting without a jury may set aside a trial decision and judgment entered thereon and "may make new findings of fact or conclusions of law, with or without taking additional testimony, render a new decision and direct entry of judgment, or it may order a new trial of a cause of action or separable issue." However, "[a] judgment rendered after a bench trial should not be disturbed unless it is obvious that the court's conclusions cannot be supported by any fair interpretation of the evidence, particularly where the credibility of the witnesses is central to the case" (Saperstein v Lewenberg, 11 AD3d 289, 289 [1st Dept 2004]). "The statute leaves the circumstances for granting such relief to the discretion of the court . . . and its decision whether to grant the motion will not be disturbed absent an abuse of that discretion" (Matter of Ramsey H. [Benjamin K.], 99 AD3d 1040, 1043 [3d Dept 2012], lv denied 20 NY3d 858  [internal citation omitted]).
Claimant argues that defendant violated DOCCS directives and policy which require officers to be diligent and vigilant because the 5-Company officers should have been watching him and Latorres, as they were the only two inmates outside of their cells.(3) Claimant further concludes that the 5-Company officers were not at their assigned posts as evinced by their failure to respond to the incident. Claimant also contends that Court misconstrued his argument to be that defendant was required to adhere to the provisions of 9 NYCRR 7003. Instead, he states that his argument is that the provisions of 9 NYCRR 7003 are the "de facto" operational standards for DOCCS and require active supervision instead of unremitting surveillance.
Contrary to claimant's assertion, the Court did properly address his argument. Superintendent Gonyea testified that the provisions of Title 7 (rather than those of Title 9) of the NYCRR are applicable to DOCCS. He further stated that active supervision of a porter who is outside of his cell is only required in a Special Housing Unit.(4) The Court found that the provisions of Title 9 - entitled "Minimum Standards and Regulations for Management of County Jails and Penitentiaries" - were not applicable to State prisons. This Court also specifically found that because CO Watts and CO Thompson were providing supervision from their positions on 7- and 8- Galleries, "claimant's argument that active surveillance would have prevented the altercation [was] simply speculative" (Belot, UID No. 2017-044-005 at 6). The Court implicitly found that the officers' manner of supervision did not violate any directive or policy.
At trial, claimant attempted to prove that defendant also violated DOCCS directives and was negligent by allowing Latorres to become a porter without having appeared before the program committee to be vetted. Claimant further asserts that the Court improperly relied upon Superintendent Gonyea's testimony in this regard as "he was not familiar with the intricacies, peculiarities, and culture of maximum security prisons; in particular Elmira."(5) Gonyea's unfamiliarity with the specifics of Elmira's program committee approvals, specifically of Latorres' assignment as porter which purportedly occurred solely on the recommendation of a correction officer, does not require the Court to discount his testimony. Gonyea specifically testified that "based upon the nature of a porter job, Latorres' recent disciplinary history and program history, there was nothing to indicate that it would be inappropriate to place him as a porter" (id. at 4). Accordingly, even if Latorres had appeared in front of the program committee, there is no basis to believe that he would not have been allowed to be a porter.
In any event, in order to recover for his attack by a fellow inmate, claimant was required to establish (1) that the State knew or should have known that claimant was at risk of being assaulted and yet failed to provide claimant with reasonable protection; (2) that the State knew or should have known that the assailant was prone to perpetrating such an assault and the State did not take proper precautionary measures; or (3) that the State had ample notice and opportunity to intervene but did not act (Sanchez, 99 NY2d at 252).
Claimant admittedly did not have any reason to believe that he was at risk of an attack (Belot, UID No. 2017-044-005 at 6). Further, Latorres had not been engaged in violent conduct in the prison setting for approximately 13 years before the altercation with claimant, and thus there was sufficient evidence to support the Court's finding that defendant did not have notice that Latorres was prone to perpetrating an assault (id.). Moreover, there was no evidence that defendant had either notice that the attack was imminent or an opportunity to intervene to prevent the attack (id.). After reviewing the evidence and argument presented at trial as well as claimant's arguments on this motion, the Court finds no basis to set aside its Decision issued on May 2, 2017 and either award judgment in claimant's favor or order a new trial.
In this motion, claimant is also "applying for a transcript of the trial as a poor person, as [he is on] public assistance and without a steady job."(6) CPLR 1101 (a) provides in pertinent part that "[u]pon motion of any person, the court in which an action is triable, or to which an appeal has been or will be taken, may grant permission to proceed as a poor person." Pursuant to CPLR 1102 (b), a party who has been granted permission to appeal as a poor person is entitled to a copy of the trial transcript without charge.
Even though a trial Court has jurisdiction to determine this motion, it is more properly made to the Appellate Court by which the appeal will be heard (see Vincent C. Alexander, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C1101:6, at 362). Notably, claimant has not yet filed a notice of appeal in this matter.(7) Moreover, other than a general statement that he receives public assistance, claimant has failed to include information concerning "the amount and sources of his . . . income and listing his . . . property with its value; that he . . . is unable to pay the costs, fees and expenses necessary to prosecute or defend the action . . . and whether any other person is beneficially interested in any recovery sought, and if so, whether every such person is unable to pay such costs, fees and expenses" as required by CPLR 1101 (a). In light of the uncertainty over whether an appeal may be taken, as well as the lack of necessary information to support this application, the Court declines to exercise its discretion to award claimant poor person status.
Accordingly, claimant's motion to set aside the Decision and for permission to proceed as a poor person on appeal is denied in its entirety.
October 3, 2017
Binghamton, New York
CATHERINE C. SCHAEWE
Judge of the Court of Claims
The following papers were read on claimant's motion:
1) Notice of Motion filed July 6, 2017; Affidavit of Jean Belot, sworn to June 15, 2017.
2) Affirmation in Opposition of Aaron J. Marcus, Assistant Attorney General, dated August 2, 2017, and attached exhibit.
Filed Papers: Claim filed on October 15, 2009; Verified Answer filed on November 25, 2009.
1. At the time he filed this claim, claimant was in the custody of the Department of Corrections and Community Supervision (DOCCS).
2. Claimant states that he received the Court's Decision on May 28, 2017. Even if the 15-day period began when the claimant received the Decision, this motion is still untimely.
3. Claimant bases his argument on his assertion that inmate movement for breakfast had not yet begun, so the 5-Company officers should not have been at the staircase at the back of the gallery.
4. Notably, claimant presented no expert testimony that the provisions of Title 9 would have any bearing upon the applicable DOCCS operational standards (see Sanchez v State of New York, 99 NY2d 247, 251 n 2 ).
5. Affidavit of Jean Belot, sworn to June 15, 2017, in Support of Motion, ¶ 6 (e).
6. Id., ¶ 7 (a).
7. Without knowing if or when defendant served a copy of the Judgment dismissing this claim (with notice of entry), it is impossible to determine whether an appeal at this time would even be timely (CPLR 5513).