New York State Court of Claims

New York State Court of Claims

KASIEM v. THE STATE OF NEW YORK, #2001-019-561, Claim No. 101387, Motion No. M-63784


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, opposes the motion.

The Court has considered the following papers in connection with this motion:
  1. Claim, filed November 9, 1999.
  2. Notice of Motion No. M-63784, 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. "Affirmation" of Allah Kasiem, dated July 24, 2001, and filed July 26, 2001.
By way of background, Claimant received a misbehavior report on August 16, 1999 while incarcerated at Elmira Correctional Facility (hereinafter "Facility") for allegedly writing harassing letters to a female staff member. A Tier III hearing was held on August 16, 1999 and continued on August 23, 1999 after which Claimant was found guilty and was, among other things, confined to the special housing unit for six months. Claimant commenced this claim seeking damages for wrongful confinement on the grounds that the State did not adhere to its own governing rules and regulations in imposing such punishment. More specifically, Claimant asserts that the hearing officer relied upon evidence in reaching his decision that was never presented at his hearing in contradiction to 7 NYCRR 254.6 (c) and failed to itemize said evidence pursuant to 7 NYCRR 254.7 (5).

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 August 1999 incident; two typed and unsigned letters which were the subject of said Inmate Misbehavior Report; Department of Correctional Services Elmira General Hearing Record Sheet; and Superintendent's Hearing Disposition Rendered form. (Attached as Exhibits A, B, C, and D 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). 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, 32). In the first instance, the Inmate Misbehavior Report is merely a narrative by the complaining officer of the underlying charges, but does not address the subsequent disciplinary hearing which is at issue here. Nor do the unsigned harassing letters, which were the subject of the underlying charge, contribute any information to the propriety of the disciplinary hearing. More specifically, at issue here are Claimant's allegations that the hearing officer considered evidence not presented at his hearing, namely his "Guidance Unit Records". (Affirmation of Allah Kasiem, ¶ 10). The Disposition form submitted by the State makes general references without further explanation to Claimant's "typing/writing styles" and "previous patterns of such behavior as noted in your placement in CSU [Close Supervision Unit] at Shawangunk as well as incidents with women outside of correctional facilities". (Exhibit D to Affirmation of James E. Shoemaker, AAG). The Court cannot determine from these documents whether or not these are references to evidence presented at the hearing. As such, this Court cannot say that these documents submitted by the State remove all factual issues as a matter of law regarding whether or not the hearing officer considered other evidence such as Claimant's Guidance Unit Records and, if so, failed to present such evidence at the hearing and/or itemize said evidence pursuant to 7 NYCRR part 254 et seq. Nevertheless, assuming, arguendo, these exhibits did qualify as documentary evidence, they still do not establish a defense to Claimant's cause of action as a matter of law for the same reasons stated above. (Realty Investors of USA 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 that 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-63784, is DENIED.

August 28, 2001
Binghamton, New York

Judge of the Court of Claims