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.