Opinion
# 2018-015-155 Claim No. 121095 Motion No. M-92271
08-29-2018
KEVIN REDD v. THE STATE OF NEW YORK
Kevin Redd, Pro Se Honorable Barbara D. Underwood, Attorney General By: Glenn C. King, Esq., Assistant Attorney General
Synopsis
Inmate's motion to renew dismissal of claim following trial was denied.
Case information
| UID: | 2018-015-155 |
| Claimant(s): | KEVIN REDD |
| Claimant short name: | REDD |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 121095 |
| Motion number(s): | M-92271 |
| Cross-motion number(s): | |
| Judge: | FRANCIS T. COLLINS |
| Claimant's attorney: | Kevin Redd, Pro Se |
| Defendant's attorney: | Honorable Barbara D. Underwood, Attorney General By: Glenn C. King, Esq., Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | August 29, 2018 |
| City: | Saratoga Springs |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant moves to renew this Court's prior Decision dismissing the claim pursuant to CPLR 2221.
Claimant, a prison inmate, sought payment for the loss of legal papers he allegedly entrusted to the Department of Correctional Services (now known as the Department of Corrections and Community Supervision) for safekeeping. Following a trial, the Court issued a decision dated October 18, 2016 dismissing the claim on the ground claimant failed to establish the legal papers had any monetary value, because no proof was presented that the papers related to any pending action or proceeding (citing Abdullah v State of New York, UID No. 2015-031-506 [Ct Cl, Minarik, J., June 10, 2015]). A Judgment dismissing the claim was thereafter filed on December 9, 2016.
In support of the instant motion, filed May 16, 2018, claimant submits two letters which apparently relate to his contention that he is innocent of the crimes for which he was convicted. The first letter, dated May 5, 2017, is from The Exoneration Initiative. Addressed to the claimant, it states that the group is currently reviewing his criminal case and requested copies of "[a]ny court documents relating to the case" and "[a]ny written statements by new witnesses describing their location and observance of the incident" (claimant's Exhibit B). Claimant also submits a letter from Bronx County Assistant District Attorney Risa B. Gerson dated June 7, 2017, stating in response to claimant's inquiry, that a Conviction Integrity Unit has been established and she has been assigned to perform an initial review of his case.
Initially, a motion to renew under CPLR 2221, applicable to motions affecting a prior "order", is not the proper procedural vehicle to address a final judgment (Maddux v Schur, 53 AD3d 738 [3d Dept 2008]). Nor may claimant benefit from the provisions of CPLR 4404 (b), applicable to post-trial motions for judgment and a new trial, inasmuch as more than 15 days has passed since the Decision dismissing the case was issued (see CPLR 4405; Trimarco v Data Treasury Corp., 146 AD3d 1008, 1009 (2d Dept 2017]). Claimant may proceed, however, pursuant to CPLR 5015 (a) (2), which permits a court that rendered a judgment to relieve a party from it upon the ground of "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."
The claim for the cost of claimant's lost legal papers was dismissed because claimant failed to establish they had any monetary value. In so doing, the Court cited the requirements of 7 NYCRR 1700.8 (a) (4), which make clear that "[i]f records in a criminal case are lost when there is no further right of appeal and no further use for them, then the records have no more than 'sentimental value', that is, no value."
The letters of The Exoneration Committee and the Bronx County District Attorney's Office appear to have been written in response to the claimant's request that they review his criminal case. Absent any evidence that time remains to perfect an appeal in state court or seek relief in federal court, the Court cannot conclude that claimant has established a legitimate need for the legal records he claims were lost. In any event, claimant failed to establish that the letters, "if introduced at the trial, would probably have produced a different result" (CPLR 5015 [a] [2]; see also Olwine, Connelly, Chase, O'Donnell & Weyher v Valsan, Inc., 226 AD2d 102 [1st Dept 1996]) inasmuch as he failed to establish the cost of replacing the missing records.
Based on the foregoing, the claimant's motion is denied.
August 29, 2018
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims Papers Considered:
1. Notice of Motion, dated May 8, 2018;
2. Affidavit, sworn to May 10, 2018, with Exhibits A and B;
3. Affirmation in opposition, dated May 30, 2018.