New York State Court of Claims

New York State Court of Claims

BLACKWELL v. THE STATE OF NEW YORK, #2002-013-005, Claim No. 102669, Motion No. M-64246


Claimant's notices to admit, which were entirely improper in form and substance and which were addressed to individuals, not to the Defendant State of New York, could be treated as a nullity by Defendant. Motion for summary judgment is granted to the party opposing the motion on the cause of action for wrongful excessive confinement and otherwise 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:
Attorney General of the State of New York
BY: REYNOLDS E. HAHN, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
March 4, 2002

Official citation:

Appellate results:

See also (multicaptioned case)


On January 16, 2002, the following papers were read on Claimant's motion for summary judgment in his favor:
1. Notice of Motion and Supporting Affidavit of James Blackwell, pro se ("Blackwell Affidavit"), with Annexed Exhibits

2. Affirmation in Opposition of Reynolds E. Hahn, Esq. ("Hahn Affirmation"), with Annexed Exhibits

3. Reply "Affirmation" of James Blackwell, pro se ("Blackwell Reply Affirmation")

The claim in this action sets forth four causes of action, all arising from Claimant's removal on December 30, 1999 from general population housing at Orleans Correctional Facility (Orleans) to the facility's Special Housing Unit (SHU). These causes of action are as follows:
1. $60.34, representing the value of various items of property that he discovered to be missing when he unpacked his belongings on January 6, 2000;
2. $209.38, representing the cost of repairs to his typewriter, after he discovered on January 13, 2000 that it was damaged;
3. $17.04, representing the amount that was deducted from Claimant's inmate account on January 28, 2000 as restitution for a State-issued green winter coat that was missing, and not refunded when the item was subsequently located; and
4. $4,878.99 in compensation for alleged unlawful solitary confinement in the facility SHU commencing December 30, 1999 when, according to Claimant, he should have been keeplocked in his general population cell.

In connection with the claims set forth in the first and second causes of action, Claimant filed institutional claims, which were denied.

Claimant has now moved for summary judgment in his favor on the grounds that Defendant failed to respond to a notice to admit and, in addition, that he is entitled to judgment in his favor as a matter of law.

CPLR 3123 provides that a party may request another party to admit the truth of any factual matters "to which the party requesting the admission reasonably believes there can be no substantial dispute at the trial...." A notice to admit is not a substitute for interrogatories or other

disclosure devices that may be used to obtain information on disputable issues (Orellana v City of New York, 203 AD2d 542), and the device is not intended to elicit concessions to ultimate facts that are to be determined from the evidence itself (Bermudez v Ruiz, 185 AD2d 212). Defendant has made no response to Claimant's extensive demands for admissions, which were addressed to four separate State employees rather than to the Defendant State of New York.

A motion to compel is not available with respect to notices to admit (CPLR 3124). Consequently, in the normal course, a party's failure to respond at all is deemed an admission (Siegel, Practice Commentaries , McKinney's Cons Laws of NY, Book 7B, C:3123:5, at 714), and facts set forth in a notice to admit will be deemed as true for purposes of a motion for summary judgment (Carlson v Travelers Ins. Co. , 35 AD2d 351 [2 Dept]). Where, however, the demands made are not properly the subject of an admission, a question is raised that may only be resolved on an evidentiary basis at trial, rather than on a motion for summary judgment (Spawton v James E. Strates Shows, 75 Misc 2d 813).

The vast majority of the demands contained in Claimant's notice to admit are improper. In fact, most of them are not in the form of admissions at all but, rather, interrogatories asking certain State officials to consult records and/or to report the actions or statements of other officials. More significantly, these notices to admit were not addressed to the Defendant in this action but, instead to several named employees of the State. CPLR 3123 provides that such demands must be served on the opposing party. As a general rule, it is prudent for a party who receives even a defective notice to move for a protective order. In this instance, however, in light of the clearly inappropriate demands and the fact that the notices were not properly directed to Defendant, that step was not necessary.

Turning to the more substantive part of Claimant's motion, the function of summary judgment is not to decide questions of fact but rather to determine whether questions of fact exist (Barr v County of Albany, 50 NY2d 247, 254; Double A Limousine Service v New York, N.Y. Limousine Service, 130 AD2d 403, 404). With respect to Claimant's first, second and third causes of action, there are material issues of fact which cannot be decided on the submissions before me, and consequently summary judgment on those portions of the claim would be inappropriate.

As to the first cause of action, the investigation made in connection with Claimant's institutional claim (Hahn Affidavit, Exhibit E) revealed a dispute between Claimant and the officers who secured his property as to whether he complied with orders to secure such property, whether some of the property for which compensation is claimed was actually inside his cell, and whether certain items for which he continues to make a claim were returned to him. As to the second cause of action, there must be inquiry into the reasons for Claimant's delay in discovering that his typewriter was damaged, particularly since he was able to produce typed documents between the time he was released from SHU and alleged discovery of damage to the typewriter. It must also be determined what, if any, effect must be given to the permit which Claimant signed to allow him to possess the typewriter (see, Hahn Affidavit, Exhibit F). Finally, with respect to the third cause of action, there is only Claimant's unsupported account of the events relating to recovery of his State-issued coat and the fact that he was told he would be reimbursed for the deduction previously taken when it was missing. Even if there is no other documentary or testimonial evidence on this point, Claimant's credibility would need to be determined at trial.

Claimant is not entitled to summary judgment on his fourth cause of action and, in fact, material in evidentiary form supplied by both parties establishes that Defendant is entitled to judgment on this aspect of the claim. Claimant acknowledges, and documentary evidence establishes, that he was charged with a disciplinary infraction which occurred on December 28, 1999 and ordered held, first in keeplock and then in SHU, through the hearing on those charges, which occurred on January 3, 2000, and issuance of the decision several days later, at which time Claimant was released from SHU. He states that he was told, two days after the charges were brought, that he was being transferred to SHU because there was a bunk available there and other general population inmates, against whom no charges were pending, had to be housed in general population. Pursuant to 7 NYCRR 251-1.6(d), inmates may be placed in SHU if correction officers have reasonable grounds to believe that an inmate's behavior in his cell or room is disruptive to the order and discipline of the housing unit "or is inconsistent with the best interests of the inmate or of the facility" and as long as such confinement is ordered in compliance with Part 301 of the regulations. 7 NYCRR 301.3(a)(1) authorizes "detention admissions" to SHU "in the case of an inmate who is awaiting initial appearance before or determination of a disciplinary hearing or a superintendent's hearing." Claimant's confinement to SHU during part of the time while he awaited the determination of the disciplinary charge against him was therefore authorized and carried out in accordance with the relevant rules and regulations. On a motion for summary judgment brought pursuant to CPLR 3212(b), where all the material facts are recited and where it appears that the cause of action has been established, judgment may be directed to the non-moving party. As to this cause of action, I am convinced that there are no triable issues of fact and that Defendant is entitled to judgment in its favor as a matter of law.

Claimant's motion is denied and, as to the claim's fourth cause of action for wrongful solitary confinement, Defendant is entitled to summary judgment in its favor and that cause of action is dismissed.

March 4, 2002
Rochester, New York

Judge of the Court of Claims