New York State Court of Claims

New York State Court of Claims

BROWN v. THE STATE OF NEW YORK, #2002-015-251, Claim No. 104003, Motion Nos. M-64642, CM-64685


Material issue of fact created by divergent claim of claimant and his alleged attacker as to presence of unauthorized boots and a paperclip in shared cell precluded summary judgment.

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:
Antonio Brown, Pro Se
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Joel L. Marmelstein, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
May 8, 2002
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant's motion for summary judgment determining the issue of liability in his favor against the defendant as a matter of law is denied. The State's cross-motion for summary judgment dismissing the claim on the ground that the cause of action has no merit is denied. This pro se claim arose out of a battery allegedly committed by claimant's cell mate at the S-Block Special Housing Unit (SHU) at Marcy Correctional Facility on February 16, 2001 at approximately 1:10 p.m. The claim is premised upon the State's alleged negligent failure to remove a pair of State-issued, rubber soled boots and a paper clip from the cell occupied by claimant and inmate Glen Bowman. Claimant alleges that upon his return from a medical appointment in December, 2000 he advised DOCS personnel that the boots were to be taken from him and returned to his personal property bin but his advice was ignored. He alleges further that he wore the boots on a subsequent medical run on January 11, 2001 and that upon his return to the SHU he again retained possession of the boots in violation of DOCS Directive 4933 (7 NYCRR § 302.2). He does not allege advising DOCS personnel more than once to remove the boots from the cell. Despite a purported contraband search of the SHU cell occupied by claimant and inmate Bowman on January 28 or 29, 2001, claimant asserts that the boots and paper clip were negligently allowed to remain in the cell and were used by Bowman in an unprovoked attack on claimant as he lay resting in his bed. Claimant asserts that as a result of the attack he received facial injuries and several defensive scars on his arms. He seeks compensation for pain and suffering, scarring and mental anguish in the sum of $250,000.00

Claimant's motion for summary judgment consists of a notice of motion dated January 24, 2002, an affidavit of claimant sworn to on January 24, 2002, documents related to a grievance filed by claimant following the incident requesting disciplinary action be taken against DOCS personnel for permitting the boots to remain in the cell, claimant's ambulatory health records for 2/16/01, the Central Office Review Committee's (CORC) response to claimant's institutional grievance and an affidavit of service of the motion.

The defendant opposed the motion by counsel's affirmation dated February 5, 2002; a copy of the State's answer, and a photocopy of a transcript of an examination before trial of inmate Bowman. In its opposition the defendant notes the claimant's failure to include copies of the pleadings as required by CPLR 3212 (b) and asserts that a material issue of fact exists which precludes the granting of claimant's motion.

Although CPLR 3212 (b) states that a motion for summary judgment shall be supported by a copy of the pleadings, this Court has generally refused to deny summary judgment based upon the moving party's failure to submit copies of the pleadings. The Court of Claims is a filing court whose rules require the pleadings to be filed with the Clerk of the court (22 NYCRR § § 206.5, 206.7). Thus, despite the claimant's technical failure to supply a copy of the defendant's answer it was available to the Court on the motion and the requested denial of claimant's summary judgment motion on that basis is rejected.

As part of the defendant's opposition to the claimant's motion the State submitted as Exhibit B a photocopy of a transcript of inmate Bowman's examination before trial conducted on December 28, 2001 at [Sing Sing] Correctional Facility. The transcript reveals that while Bowman admits that he and claimant engaged in a fight in their cell at Marcy Correctional Facility on February 16, 2001 he denied the use of either boots or a paper clip during the fight (see Exhibit B pp. 14-18). In fact, Bowman not only denied his use of these items but also denied their very presence in the cell which he and claimant occupied (Exhibit B, pp 14-15, 18).

The Court's role on a motion for summary judgment is issue finding rather than issue determination (Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395; Lui v Park Ridge at Terryville Assn., 196 AD2d 579). In order to deny summary judgment a court need only determine that a factual issue arguably exists (S.J. Capelin Assoc. v Globe Mfg. Corp., 34 NY2d 338). The standards related to summary judgment are fundamental and familiar. The moving party bears the initial burden of making a prima facie showing of its entitlement to judgment as a matter of law (Holtz v Niagara Mohawk Power Corp., 147 AD2d 857). Once such a showing has been made the "burden is shifted to the opposing party to come forward with proof in evidentiary form to show the existence of genuine triable issues of fact" (Mahar v Mahar, 111 AD2d 501, 502; Ferber v Sterndent Corp., 51 NY2d 782).

Assuming for purposes of the motion that claimant met his initial burden and thereby shifted the burden to the defendant there can be no doubt that inmate Bowman's EBT testimony has raised material issues of fact relative to the presence of the boots and paper clip and Bowman's alleged use of the items upon which claimant seeks to predicate liability against the State. The existence of a material issue of fact precludes summary judgment. Claimant's motion is, accordingly, denied.

The State's cross-motion for summary judgment is likewise precluded by the existence of the same material issues of fact generated by the State's submission in opposition to claimant's motion and the record does not otherwise support dismissal of the claim as a matter of law. Defendant's cross-motion is, therefore, denied.

May 8, 2002
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated January 24, 2002;
  2. Affidavit of Antonio Brown sworn to January 24, 2002 with exhibits;
  3. Notice of cross-motion dated February 6, 2002;
  4. Affirmation of Joel L. Marmelstein dated February 6, 2002 with exhibits.