New York State Court of Claims

New York State Court of Claims

GONCALVES v. THE STATE OF NEW YORK, #2004-031-122, Claim No. 108428, Motion Nos. M-68299, CM-68652


Defendant met initial burden demonstrating entitlement to summary judgment. Claimant failed to demonstrate that a question of fact exists regarding his cause of action for lost art supplies. Defendant's motion for summary judgment granted. Claimant's motion to compel disclosure denied as moot

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: PAUL VOLCY, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
September 20, 2004

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers, numbered 1 to 6, were read on motion by Claimant to compel discovery and cross-motion by Defendant for summary judgment:
  1. Claimant's Notice of Motion (M-68299), filed April 9, 2004;
2) Claimant's unsworn statement dated March 28, 2004, with attached exhibits;
3) Defendant's Notice of Cross-Motion (M-68652), filed June 17, 2004;
  1. Affirmation of Paul Volcy, Esq., dated June 9, 2004, with attached exhibits;
5) Claimant's unsworn statement, dated July 24, 2004, with attached exhibit;
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 the claim.

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.

September 20, 2004
Rochester, New York

Judge of the Court of Claims