Opinion
# 2021-015-047 Claim No. 123924 Motion No. M-96623
04-23-2021
GILL TERRENCE v. THE STATE OF NEW YORK
Gill Terrence, Pro Se No Appearance
Synopsis
Claimant's motion to reargue trial decision dismissing his claim was denied. A motion to reargue is an improper procedural vehicle to seek vacatur of a trial decision which, in any event, was lacking in merit.
Case information
| UID: | 2021-015-047 |
| Claimant(s): | GILL TERRENCE |
| Claimant short name: | TERRENCE |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 123924 |
| Motion number(s): | M-96623 |
| Cross-motion number(s): | |
| Judge: | FRANCIS T. COLLINS |
| Claimant's attorney: | Gill Terrence, Pro Se |
| Defendant's attorney: | No Appearance |
| Third-party defendant's attorney: | |
| Signature date: | April 23, 2021 |
| City: | Saratoga Springs |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant moves pursuant to CPLR 2221 to renew this Court's trial decision dismissing the claim, for the assignment of counsel, and to produce claimant for a hearing on the motion.
Claimant was allegedly the victim of an unprovoked assault by Sergeant Ropeter at Mt. McGregor Correctional Facility on May 29, 2013. The claim was dismissed by decision dated August 22, 2018 following a trial at which the claimant appeared pro se, and a judgment was subsequently entered thereon. Claimant previously moved for the identical relief and contended then, as he does now, that although he retained the law firm of Franzblau Dratch, P.C. to represent him in this matter, they failed to appear on his behalf at trial. Claimant further indicates that he sent documents regarding his claim to the law firm and that, despite his attempts to contact them prior to trial, he did not receive a response until after the trial was concluded.
As claimant was previously instructed in the Decision and Order denying a similar motion, a motion to renew pursuant to CPLR 2221 is not the proper procedural vehicle to challenge a judgment entered after a trial (DeMaille v State of New York, 166 AD3d 1405 [3d Dept 2018]). Rather, a motion pursuant to CPLR 4404 (b) is the appropriate basis to seek vacatur of a trial decision and judgment entered thereon. However, any such motion must be made within 15 days following the decision (see CPLR 4405). The trial decision claimant seeks to vacate here was rendered over two years ago. The motion is therefore untimely.
In any event, claimant's contention that he retained the law firm of Franzblau Dratch, P.C. to represent him in this matter is belied by the retainer agreement itself, which pertains to a personal injury claim that arose on May 6, 2018. Moreover, neither the superintendent's dismissal of several disciplinary charges brought against the claimant nor the records relating to claimant's hearing loss nearly four years after the incident would change the result.
As a result of this determination, that branch of claimant's motion seeking the assignment of counsel and a hearing are denied as moot. Based on the foregoing, claimant's motion is denied.
April 23, 2021
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims Papers Considered:
1. Notice to Renew Motion sworn to September 8, 2020;
2. Affidavit in support sworn to June 18, 2019, with Exhibits A-C.