New York State Court of Claims

New York State Court of Claims

McKINLEY v. THE STATE OF NEW YORK, #2001-019-560, Claim No. 103784, Motion No. M-63816


State's motion to dismiss based upon documentary evidence is denied.

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:
BY: James E. Shoemaker, Assistant Attorney General, of counsel
Third-party defendant's attorney:

Signature date:
August 28, 2001

Official citation:

Appellate results:

See also (multicaptioned case)


The State of New York (hereinafter "State") moves for dismissal on the ground that its defense is founded upon documentary evidence pursuant to CPLR 3211 (a) (1). Claimant, an inmate appearing pro se, submitted a letter indicating his opposition to this motion and requesting an adjournment.[1]

The Court has considered the following papers in connection with this motion:
  1. Claim, filed February 7, 2001.
  2. Notice of Motion No. M-63816, dated July 12, 2001, and filed July 17, 2001.
  3. Affirmation of James E. Shoemaker, AAG, in support of motion, dated July 12, 2001, with attached exhibits.
  4. Letter from Sincere McKinley to the Chief Clerk of the Court, in opposition to motion, dated August 7, 2001 and received by the Court August 16, 2001.
By way of background, Claimant received a misbehavior report while incarcerated at Elmira Correctional Facility (hereinafter "Facility") for alleged threats made to Facility hospital staff on September 27, 2000. Claimant commenced this claim seeking damages for wrongful confinement in keeplock status for 30 days on the grounds that the State did not adhere to its own governing rules and regulations in imposing disciplinary measures related thereto. More specifically, this Claim lists various alleged violations of the governing rules and regulations including, but not limited to, the timeliness of the hearing, unauthorized and unjustified adjournment of the hearing; improper consideration of off-the-record testimony; and an inadequate misbehavior report.

Generally, on a motion to dismiss pursuant to CPLR 3211, a court must liberally construe the pleadings in Claimant's favor, accept the facts alleged as true, and determine whether the facts alleged fit within any cognizable theory. (Ozdemir v Caithness Corp., 2001 WL 838992; Cron v Hargro Fabrics, 91 NY2d 362, 366). Furthermore, when the motion to dismiss is made pursuant to CPLR 3211 (a) (1) "[a] defendant must show that the documentary evidence upon which the motion is predicated resolves all factual issues as a matter of law and definitively disposes of the [claimant's] claim [citations omitted]." (Unadilla Silo Co. v Ernst & Young, 234 AD2d 754).

However, a determination under this standard presupposes that the defendant has, in fact, submitted documentary evidence in support of the motion in the first instance. The term "documentary evidence" as referred to in CPLR 3211 (a) (1) typically means judicial records such as judgments and orders or out-of-court documents such as contracts, deeds, wills, and/or mortgages. (Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book7B, CPLR C3211:10, at 20). "Documentary evidence" has also been described as "[a] paper whose content is essentially undeniable and which, assuming the verity of its contents and the validity of its execution, will itself support the ground on which the motion is based." (Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book7B, CPLR C3211:10, at 21).

Here, the so-called "documentary evidence" submitted by the State in support of this motion includes the following: Claimant's Inmate Misbehavior Report relative to the September 27, 2000 incident; Acceptance of Tier II Misbehavior Report form; Department of Correctional Services General Hearing Record Sheet; Tier I and Tier II Review; and Appeal Form to the Superintendent. (Attached as Exhibits A, B, C, D and E, respectively, to Affirmation of James E. Shoemaker, AAG). The State is asking this Court to conclude from these exhibits that the State did not violate any rule or regulation during Claimant's hearing which would entitle its actions to immunity. (Arteaga v State of New York, 72 NY2d 212, 214). In this Court's view, the documents attached to the State's moving papers are not the types of documentary evidence envisioned by the statute since questions of fact abound in connection therewith. (Siddiqui v Nationwide Mutual Ins. Co., 255 AD2d 30). Nevertheless, assuming, arguendo, these exhibits did qualify as documentary evidence, they still do not establish a defense for the State to Claimant's cause of action as a matter of law. (Realty Investors of USA, Inc. v Bhaidaswala, 254 AD2d 603). In sum, in this Court's view, the State has failed to submit any documentary evidence as envisioned by CPLR 3211 (a) (1) and, as such, the motion to dismiss on such ground must be denied.

Parenthetically, the Court notes that this motion may have been better suited to a motion for summary judgment pursuant to CPLR 3212. (Realty Investors of USA v Bhaidaswala, supra, 254 AD2d, at 605). Although the Court considered converting this motion upon proper notice to both parties pursuant to CPLR 3211 (c), based upon the questions of fact inherent in a matter such as this and the fact the State specifically denoted this motion as one to dismiss, the Court has exercised its discretion not to convert the motion. (Siddiqui v Nationwide Mutual Ins. Co., supra, 255 AD2d, at 34).

Accordingly, for the reasons stated above, it is ORDERED that the State's motion to dismiss, Motion No. M-63816, is DENIED.

August 28, 2001
Binghamton, New York

Judge of the Court of Claims

[1]Claimant requested an adjournment of this motion until such time as he is released on parole which date he does not specify. The Court declined to grant the adjournment in view of the disposition dictated by the State's papers.