New York State Court of Claims

New York State Court of Claims

BONDS v. THE STATE OF NEW YORK , #2002-030-513, Claim No. 101992, Motion No. M-64956


Defendant's unopposed motion for summary judgment granted. Claimant failed to comply with Order compelling discovery, that contained a conditional - now absolute by its terms - order of preclusion. Claimant could not establish a prima facie case without precluded items. Defendant's motion for change of venue denied as moot and on substantive grounds as well.

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:
Third-party defendant's attorney:

Signature date:
April 25, 2002
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read on Defendant's motion for summary judgment or, in the alternative, to change venue, submitted on April 17, 2002:
  1. Notice of Motion
  2. Affirmation in Support of Motion by Joel L. Marmelstein, Assistant Attorney General, dated April 1, 2002, with accompanying exhibits.
  1. Opposing papers
3,4 Filed Papers: Claim, Answer This is a claim by a former inmate appearing pro se to recover the sum of $227.50 as the reasonable value of the three pieces of claimant's art work that were lost, and the two pieces of his art work that were damaged, while in the custody of the New York State Department of Correctional Services (hereafter DOCS). The claim alleges that Claimant had handcrafted five (5) wooden works of art for display at the DOCS art show in Albany, New York. The pieces were packed up at Marcy Correctional Facility by correctional personnel. After the pieces were sent, Claimant was transferred to Camp Pharsalia Correctional Facility. Thereafter, he learned of the loss and damage to his art work. A facility claim was denied, and Claimant commenced proceedings in this Court.

After serving discovery demands upon Claimant, including a demand for a Verified Bill of Particulars, and attempts at consent discovery, Defendant made a motion to compel compliance, that was granted. (Collins, J., M-62837, filed March 9, 2001). Pursuant to the terms of the Order, Claimant was to respond to the demand for a verified bill of particulars and to the other discovery demands within 45 days of service upon him of the Order with notice of entry. Failure to comply with the directive would result in Claimant's being precluded from offering evidence at trial regarding any and all items upon which response had not been provided.

Claimant was released from custody in July, 2001. The present motion was served upon Claimant at the address he provided after his release, to wit: 96 South 25th Street, Wyandanch, NY 11798 on April 1, 2002. The application is unopposed.

With its attorney's affirmation submitted in support of the present motion, Defendant has furnished proof of service of the prior Order of conditional preclusion, with notice of entry, upon Claimant on March 16, 2001, at Claimant's address of record at the Camp Pharsalia Correctional Facility, 496 Center Road, South Plymouth, NY 13844-6777. The affirmation also indicates that to date, no responses have been served upon the attorney general as required.

Failure to comply with a properly served conditional order of preclusion - now made absolute by its terms - or other orders compelling disclosure, has, in other instances, been sufficient to warrant dismissal of a claim as a sanction, provided such lack of compliance is "willful." See, §3126 (3) Civil Practice Law and Rules; Kihl v Pfeffer, 94 NY2d 118, 122-123 (1999); Zletz v Wetanson, 67 NY2d 711 (1986); Nowak v Veira, 289 AD2d 383 (2d Dept. 2001); Sindeband v McCleod, 226 AD2d 623 (2d Dept 1996); Forman v Jamesway Corp., 175 AD2d 514 (3d Dept. 1991 ); Sturdivant v State of New York, Claim No. 101191; M-62098, Collins J., October 31, 2000.

Without the "willfulness" component, however, the summary judgment motion would seem the application of choice, assuming the movant establishes entitlement to judgment as a matter of law, and the party opposing the motion fails in its concomitant burden. See, § 3212 Civil Practice Law and Rules; Parkinson v State of New York, Claim No. 101281, M-62433, Collins, J., December 12, 2000; Ripley v State of New York, Claim No. 100392, M-61951, Collins, J., August 21, 2000; But, c.f., Carson v State of New York, Claim No. 102370, M-63659 Collins, J., September 24, 2001; Santiago v State of New York, Claim No. 101146, M-64747, Corbett, J., March 19, 2002).

Civil Practice Law and Rules §3212(b) provides in pertinent part:
....A motion for summary judgment shall be supported by affidavit, by a copy of the pleadings and by other available proof, such as depositions and written admissions. The affidavit shall be by a person having knowledge of the facts; it shall recite all the material facts; and it shall show that there is no defense to the cause of action or that the cause of action or defense has no merit. The motion shall be granted if, upon all the papers and proof submitted the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party....the motion shall be denied if any party shall show facts sufficient to require a trial of any issue of fact....

Once a movant has made a prima facie showing of entitlement to judgment as a matter of law by proffering sufficient evidence to eliminate any genuine, material, issues of fact, the party in opposition to the motion for summary judgment must tender evidentiary proof in admissible form to establish the existence of material issues that require a trial. Winegrad v New York University Medical Center, 64 NY2d 851 (1985); Zuckerman v City of New York, 49 NY2d 557 (1980). While it is not the best practice, the use of an attorney's affirmation appending pertinent deposition testimony, documentary evidence, and a verified pleading reciting material facts, is not a fatal procedural flaw in a movant's presentation. Alvarez v Prospect Hospital, 68 NY2d 320, 325 (1986).

In a case such as this one, involving an Order of Preclusion directed to the non-moving party, once the movant shows proper service of that Order [See, §§ 306; 2103(b)(2) and (c) Civil Practice Law and Rules], and lack of compliance with it prima facie, it becomes the Claimant's burden to show that any failure to comply with the duly served order is somehow excusable [See, Parkinson v State of New York, supra], as well as to show how his claim for damages could ever be proven, given the preclusion of the relevant particulars. Ripley v State of New York, supra.

Among the particulars demanded here were details as to the value of the allegedly lost and damaged property - which figure had varied between the claim and subsequent correspondence - and details as to witnesses as well. Additionally, in correspondence surrounding the discovery issues, Claimant had alluded to an agreement of some kind in which value might be established. This agreement is specifically noted as not having been furnished in the preclusion Order of this Court.

Based upon the failure to furnish the particulars noted, Claimant could not establish a prima facie case concerning this claim. Defendant is entitled to summary judgment.

Defendant's motion for a change of venue is denied as moot, and on substantive grounds as well. There are no provisions in the Court of Claims Act concerning motions for a change in venue, thus, relevant provisions of the Civil Practice Law and Rules apply. § 9(9) Court of Claims Act. The statements contained in the attorney's affirmation, to the effect that both parties' material witnesses "probably" reside in Oneida County, as against the discretionary determination already made by the Presiding Judge of this Court to transfer the matter to the undersigned [See, 22 NYCRR § 206.4(b)], hardly satisfies the requirements of §510 Civil Practice Law and Rules. See, e.g., Varela v State of New York, Claim No. 99292, M-63341, McNamara, J., August 1, 2001.

Accordingly, Claim Number 101992 is dismissed in its entirety.

April 25, 2002
White Plains, New York

Judge of the Court of Claims