New York State Court of Claims

New York State Court of Claims

CHISHOLM v. THE STATE OF NEW YORK, #2002-011-572, Claim No. 104894, Motion Nos. M-65188, CM-65252


Claimant's motion and defendant's cross-motion for summary judgment denied.

Case Information

RICHARD W. CHISHOLM, a/k/a Reginald Claiborn, #98A6020
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:
Richard W. Chisholm, Pro Se
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Eileen E. Bryant, Esq.,Assistant Attorney General
Third-party defendant's attorney:

Signature date:
August 26, 2002
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


In this claim for loss of personal property, claimant has moved for summary judgment

and defendant has made a cross-motion for summary judgment on the basis that claimant failed to exhaust his administrative remedy as required by Court of Claims Act §10(9).

The proponent of a motion for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact (Winegrad v New York Univ. Med. Center, 64 NY2d 851, 853).

In the claim and in his affidavit in support of the motion, claimant alleges that during a search for weapons correction officers removed certain items of his personal property from a refrigerator on his housing unit and without reason or authority permanently disposed of the items. Such allegations are sufficient to establish claimant's burden of showing that defendant breached a duty owed to him and thereby caused him injury (see Pollard v State of New York, 173 AD2d 906).

Where, as here, a prima facie showing of entitlement to summary judgment has been made, the burden shifts to the party opposing the motion to raise a triable issue of fact (Hackstadt v Hackstadt, 194 AD2d 908).

In opposing the motion defendant has offered a memo prepared by a correction officer indicating that the items disposed of were not properly labeled and were discarded for that reason. The memo raises an issue of fact as to whether in disposing of the items defendant acted within its authority. Accordingly, the motion by claimant for summary judgment is denied.

Pursuant to Court of Claims Act §10(9) an inmate in the custody of the Department of Correctional Services may not file a claim in this court for loss of personal property until he or she has exhausted the personal property claims administrative remedy established by the department. Defendant maintains that claimant filed such a claim but did not appeal the denial of his department claim and therefore, failed to exhaust the administrative remedy. Claimant, however, has provided a copy of the administrative claim form on which he filled out the portion pertaining to an appeal. Though the form does not show that a determination of the appeal was made, it is sufficient to establish a question of fact as to whether claimant took an appeal and thereby exhausted his administrative remedy. Accordingly, the cross-motion for summary judgment is denied.

The motion and cross-motion are denied.

August 26, 2002
Saratoga Springs, New York

Judge of the Court of Claims

Papers Submitted:

1. Notice of Motion dated April 29, 2002
2. Motion for Summary Judgment of Richard W. Chisholm verified on the 3rd day of April, 2002 with exhibits annexed
3. Notice of Cross-Motion dated May 22, 2002
4. Affirmation of Eileen E. Bryant, Esq. dated May 22, 2002 with exhibits annexed
5. Reply to Cross-Motion of Richard W. Chisholm verified on the 28th day of May, 2002