6) Filed Documents: Claim, Answer, Claimant's discovery demands. Claimant has
moved to compel Defendant to respond to his discovery demands in this matter.
Defendant has filed a cross-motion, seeking summary judgment and dismissal of
In his claim, filed on October 20, 2003, Mr. Goncalves alleges that on April
12, 2003, while incarcerated at Collins Correctional Facility, certain items of
his personal property (specifically art supplies consisting of a "Gallery Art
Chest" worth $59.49 and a colored pencil set with 20 pencils worth $19.64) were
lost or stolen by agents of Defendant.
I will first address Defendant's motion for summary judgment, as this motion
might affect the outcome, or render moot, Claimant's non-dispositive motion.
Initially, I note that, in any application for summary judgment, the moving
party bears the heavy burden of establishing that he or she is entitled to
judgment as a matter of law. That party must tender evidence sufficient to
demonstrate the absence of any material issues of fact (Andre v Pomeroy,
35 NY2d 361; Winegrad v New York Univ. Med. Center, 64 NY2d 851, 853).
Further, the evidence submitted must be viewed in the way which most benefits
the non-moving party (see Robinson v Strong Memorial Hospital, 98 AD2d
976 [4th Dept 1983]).
Defendant argues that the art supplies in question were shipped out of the
facility and that, therefore, the items for which Claimant seeks reimbursement
were not lost or stolen by agents of Defendant. Documents contained in
Defendant's exhibit G demonstrate that, on February 2, 2003, more than two
months prior to the alleged incident, the Gallery Art Chest was mailed, at
Claimant's election, to Alana O'Neil, care of Brandy O'Neil, in Lyons, New York.
The documents in exhibit G also demonstrate that, on the date of the alleged
incident, April 12, 2003, along with other items of personal property, 71
pencils and 49 pens were shipped at Claimant's request to Dora Badgley in Red
Creek, New York.
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, supra). Once this showing has been made, the
burden shifts to the party opposing the motion to produce evidentiary proof in
admissible form sufficient to establish the existence of material issues of fact
which require a trial (Alvarez v Prospect Hospital, 68 NY2d 320).
When the moving party has successfully met its burden, the party who opposes a
summary judgment motion must "assemble, lay bare and reveal his proofs, in order
to show that the matters set up in his [pleading] are real and are capable of
being established upon a trial" (DiSabato v Soffes, 9 AD2d 297 at 301
lv dismissed, 11 AD2d 660). Bald, conclusory assertions (Ehrlich v
American Moninger Greenhouse Manufacturing Corp., 26 NY2d 255, 259) and the
shadowy semblance of an issue cannot, by themselves, defeat a motion for summary
judgment (DiSabato v Soffes, supra, at 300). Claimant has failed
to come forward with any evidence that rebuts Defendant's showing that the items
for which Claimant seeks reimbursement were shipped out of the facility in
accordance with Claimant's directions.
Based upon the foregoing it is:
ORDERED, that Defendant's motion for summary judgment is granted and the
Claim is dismissed. Claimant's motion to compel discovery is denied as moot.
The Clerk of the Court is directed to close is directed to close the file.