New York State Court of Claims

New York State Court of Claims

SALAAM v. THE STATE OF NEW YORK, #2002-011-591, Claim No. 105538, Motion No. M-65426


Claimant's motion for summary judgment or in the alternative for an order striking the five affirmative defenses set forth in the anser by defendant 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:
Rasool Salaam, 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:
October 17, 2002
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


In this action based upon loss of personal property, claimant has moved for summary

judgment or in the alternative for an order striking the five affirmative defenses set forth in the answer by defendant.

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). Claimant maintains that a package containing books and journals that he mailed home and were returned to the correctional facility as unclaimed were destroyed by personnel at the facility before he was notified the package came back and before he was given an opportunity to have them sent somewhere else. Defendant, however, has submitted documents from the facility which indicate that claimant was advised that the package was returned and that the contents were destroyed only after he refused to provide an alternate address to ship the package to. The conflicting proof as to the sequence of events presents a question of fact which can only be determined after a trial. Accordingly, the motion for summary judgment is denied.

Claimant has also moved for an order striking the five affirmative defenses on the basis that each is without merit. A motion to dismiss defenses may be made on the ground that a defense is not stated or has no merit (CPLR 3211[b]). On a motion to dismiss a defense pursuant to CPLR 3211(b), all of defendant's allegations must be deemed to be true and defendant is entitled to all reasonable inferences to be drawn from the proof submitted (Capital Tel. Company v Motorola Communications and Electronics, Inc., 208 AD2d 1150). If there is any doubt as to the availability of a defense, it should not be dismissed (Becker v Elm Air Conditioning Corp., 143 AD2d 965).

Defendant has withdrawn the first, fourth and fifth affirmative defenses.

The second affirmative defense is based on the assertion that defendant is not liable for lost property which claimant did not own or rightfully possess. Without deciding the extent to which this defense may be utilized, it should not be stricken. There is no indication that disclosure has been completed in this recently filed claim and a party should be permitted a reasonable opportunity to conduct disclosure with respect to an issue raised in the pleadings before it is summarily decided (see, CPLR 3212[f]). The principle also applies with respect to the third affirmative defense which alleges culpable conduct on the part of claimant.

Based upon the foregoing, the motion is denied.

October 17, 2002
Saratoga Springs, New York

Judge of the Court of Claims

Papers Submitted:
1. Notice of Motion dated June 24, 2002
2. Affidavit in Support of Rasool Salaam sworn to the 24th day of June, 2002 with attachments
3. Affidavit in Support of Motion for Summary Judgment of Rasool Salaam sworn to the 30th day of July, 2002
4. Affirmation in Opposition of Eileen E. Bryant, Esq. dated August 9, 2002 with exhibits annexed