New York State Court of Claims

New York State Court of Claims

GREEN v. THE STATE OF NEW YORK, #2000-013-005, Claim No. 98683-A, Motion Nos. M-61074, CM-61176


Claimant's Motion to Strike Answer and for Summary Judgment in wrongful excessive confinement claim denied - issues of fact remain. Defendant's cross-motion for sanctions is denied because Claimant's motion was made in good faith.

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:
Attorney General of the State of New York
BY: ELLEN LEARY COCCOMA, ESQ. Assistant Attorney General
Third-party defendant's attorney:

Signature date:
May 14, 2000

Official citation:

Appellate results:

See also (multicaptioned case)


On February 16, 2000, the following papers, numbered 1 through 10 were read on Claimant's motion to dismiss defenses, to strike answer and for summary judgment and on Defendant's cross-motion for sanctions:
Papers Numbered

Notice of Motion; Affidavit in Support and
Annexed Exhibits 1, 2

Notice of Cross-Motion; Affirmation in Support 3, 4

Claimant's Reply "Affirmation" 5

Claimant's Requests for Admission and Discovery

Demands; 6

Defendant's Response to Claimant's Requests for

Admissions and Discovery Demands; Defendant's

Bill of Particulars 7, 8

Filed Papers: Claim, Answer 9, 10

This is the third time that Claimant has moved to strike Defendant's affirmative defenses and for entry of summary judgment in this action for wrongful excessive confinement. By decision and order filed July 14, 1999 (M-59233, CM-59586), I dismissed two of Defendant's affirmative defenses and denied Claimant's motion to dismiss Defendant's immunity defense. I also granted Defendant partial summary judgment on the immunity defense. I found, in short, that Defendant was clearly immune from liability for part of the confinement, but that there were issues of fact that needed to be resolved before I could decide whether the balance of the confinement was wrongful as Claimant argues, or whether Defendant is correct that it was immune from liability for that confinement.

Claimant asked me to reconsider the denial of his motion to strike Defendant's immunity defense. I did. In an order filed on October 13, 1999 (M-60026), I reaffirmed my prior decision, holding that Claimant had not presented me with evidence in admissible form that would establish as a matter of law that the balance of his confinement was improper.

Shortly after my second decision was filed, Claimant served a demand for a bill of particulars, requests for admission and other discovery demands on Defendant in an apparent effort to eliminate the factual issues that I identified in my two prior decisions. Defendant's responses to those demands and some other materials formed the basis for his present motion. I have reviewed the responses and other new materials in tandem with the papers that the parties filed in connection with the earlier motions. There may be a great deal of merit to some of Claimant's positions. It remains clear to me, however, that there are unresolved factual issues and that a trial of this matter is necessary before I can decide this controversy. Therefore, Claimant's motion is denied.

This brings me to Defendant's cross-motion for sanctions. Claimant is one of the most prolific litigators in the Southport Correctional Facility. Nevertheless, it is evident that he puts a good deal of time, effort and thought into his papers. There is no question that his present papers ask me to revisit some arguments that I had previously considered and ruled upon, but Claimant also injected new evidence and new arguments into the mix. Though the submissions were not enough to satisfy Claimant's burden of proof, they were made in good faith. Therefore, I am denying Defendant's motion.

Claimant should be extremely cautious about bringing any further motions to strike or for summary judgment in this case. The question of whether this case can be resolved by motion has now been exhaustively considered. Unless Defendant were to concede that the confinement at issue was unauthorized and improper, I do not see how this case can be resolved without a trial.

May 14, 2000
Rochester, New York

Judge of the Court of Claims