New York State Court of Claims

New York State Court of Claims

GILL v. THE STATE OF NEW YORK, #2004-031-048, Claim No. 108171, Motion No. M-67490


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:
New York State Attorney General
BY: HEATHER R. RUBINSTEIN, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
May 13, 2004

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers, numbered 1 to 4, were read on motion by Defendant for an order dismissing the claim:
1. Notice of Motion, filed October 6, 2003;
2. Affirmation of Heather R. Rubinstein, Esq., dated October 2, 2003, with attached exhibit;
3. Claimant's Affidavit (improperly styled as an Affirmation), sworn to on November 2, 2003;
4. Filed Papers: Claim. This is Defendant's motion, pursuant to Civil Practice Law and Rules §3211(a)(7), filed in lieu of an answer, seeking dismissal of the claim for failing to state a cause of action. The pro se Claimant, an inmate at the Five Points Correctional Facility (Five Points), seeks monetary damages based on causes of action sounding in negligence and medical malpractice for the alleged failure to replace an "egg crate" mattress, presumably lost at Five Points.

According to the claim, Claimant was given a Medical Permit for and issued an egg crate mattress on March 3, 2003 (Exhibit B attached to claim). On May 30, 2003, Claimant was transferred from Five Points to another correctional facility for a court appearance. At that time, the egg crate mattress assigned to him was allegedly placed in storage. Approximately two weeks later, Claimant returned to Five Points and requested the egg crate mattress. He was allegedly advised that the mattress had been lost. Claimant was then told to request another mattress from the medical department. Apparently in response to his request, Claimant was told that the facility's medical department was out of egg crate mattresses (Exhibit D to claim), but that one would be ordered. Claimant alleges that he has suffered and will continue to suffer neck and back pain as a result of Defendant's failure to immediately replace the egg crate mattress.

On a motion to dismiss a claim for failure to state a cause of action, the Court is concerned with whether the claim states a cause of action, and not upon a resolution of the ultimate facts. The Defendant is held to have conceded, for purposes of the motion only, that every fact alleged in the claim is true (Stukuls v State of New York, 42 NY2d 272), and all inferences to be drawn from these facts must be drawn in favor of claimant (Smith v State of New York, Ct Cl, June 6, 2001 [Claim No. 103396, Motion No. M-63231], Sise, J., UID #2001-028-0535).[1] "[T]he sole criterion is whether the pleading states a cause of action, and if from its four corners factual allegations are discerned which taken together manifest any cause of action cognizable at law a motion for dismissal will fail" (Smith v State of New York, id., citing Guggenheimer v Ginzburg, 43 NY2d 268, 275).

Reviewing the four corners of this claim, I find that the gravamen of Claimant's claim is that the Defendant was unable to replace the egg crate mattress for which Claimant had a medical permit immediately upon Claimant's return to Five Points because they were out of stock. This claim is almost identical to an earlier claim brought by this Claimant (Gill v State of New York, Ct Cl, January 10, 2001 [Claim Nos. 95917, 96180], Mignano, J., UID #2001-029-042). In his earlier claim, Claimant alleged that the State negligently failed to immediately provide him with a steel bed and a straight back chair for which he had medical permits. In dismissing this claim, the Court found that it could not "conclude that the defendant breached its own policies in not having a steel bed immediately available to claimant" and, even assuming arguendo the existence of a breach of duty, that the Claimant failed, by way of medical proof, to establish that the "breach resulted in any damage or injury to" Claimant. I agree with Judge Mignano and find that, while the Defendant owes a duty to its incarcerated citizens to provide adequate medical care (Mullally v State of New York, 289 AD2d 308), this duty was not breached by the Defendant when it could not immediately provide Claimant with an egg crate mattress because such mattresses were out of stock. The claim must, therefore, be dismissed.[2]

Moreover, while Claimant alleges in the claim that he has and will continue to suffer back and neck pain, numbness, and "complications sleeping" due to the failure to reissue to him an egg crate mattress (see claim ¶ 18), all of these alleged injuries presumably predated the loss of the egg crate mattress and were undoubtedly the reason why the medical permit for an egg crate mattress was issued (see medical records attached to claim). Claimant has failed, however, to set forth in the claim specifically how he was injured by not receiving an egg crate mattress immediately upon his return to Five Points and, as a result, his claim fails to comply with Court of Claims Act § 11 (Tafari v State of New York, Ct Cl, April 3, 2003 [Claim No. 103164, Motion No. M-65946], Minarik, J., UID # 2003-031-013.).

Based on the foregoing, it is:

ORDERED, that the Defendant's motion to dismiss is granted, and the claim is dismissed without prejudice.

May 13, 2004
Rochester, New York

Judge of the Court of Claims

[1] This and other Court of Claims decisions are available through the Court of Claims website at
[2] In dismissing this claim based on the allegations contained within the four corners of the claim, I recognize that there are certain allegations raised solely in Claimant's reply which cause some concern. I, therefore, dismiss this claim without prejudice, giving Claimant the opportunity, if he can, to replead his claim to state a cause of action.