New York State Court of Claims

New York State Court of Claims

MOSLEY v. THE STATE OF NEW YORK, #2004-034-516, Claim No. 108503, Motion No. M-67837


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: JAMES L. GELORMINI, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
March 9, 2004

Official citation:

Appellate results:

See also (multicaptioned case)


In this action to recover for denial of prison exercise periods Claimant has moved for summary judgment against the State pursuant to CPLR 3212. For reasons that follow the Court will deny that application.

The following papers have been submitted in connection with this motion:

1. Claim, verified November 3, 2003, filed November 6, 2003;

2. Answer, verified November 21, 2003, filed November 25, 2003;

3. Notice of Motion for Summary Judgment, dated December 7, 2003, filed December 24, 2003;

4. Affidavit of Osiris Mosley, sworn to December 7, 2003, in support of summary judgment, with attached exhibits;

5. Affirmation of James L. Gelormini, dated February 9, 2004, filed February 11, 2004, in opposition to summary judgment, with attached exhibit.

Claimant is an inmate confined to Wyoming Correctional Facility. He filed this Claim to recover for the State's alleged negligence in refusing to provide him daily exercise periods between March 6 and March 16, 2003, purportedly in violation of State Directive 4009, which embodies 7 NYCRR 1704.6. At that time Mr. Mosley concededly was serving a cube confinement for a thirty-day period, after having been released from a special housing unit (SHU) on or about March 6, 2003. There is evidence that those confinements were the result of an earlier disciplinary determination, wherein Claimant inter alia lost recreation privileges for a ninety-day period commencing February 4, 2003. After being denied exercise periods following his transfer from SHU to cube confinement, Claimant filed a grievance on March 7, 2003. He withdrew his complaint on March 11, 2003, then reopened the matter on March 13, 2003. The grievance initially was denied by the facility's grievance committee, and by the superintendent in a subsequent appeal, before being accepted in part, in a May 7, 2003 review by the Department of Correctional Services Inmate Grievance Program Central Office Review Committee (CORC). In its modification of the local grievance determinations the CORC appears to have relied upon its own administrative precedent to distinguish between inmates who are cube-confined but allowed to attend some activities, and those such as Claimant who were not authorized to leave their confinements for meals, call-outs, and programs. Claimant then filed this Claim to recover $1,450 in damages for the denial of exercise privileges, and now seeks summary judgment in his favor.

Summary judgment is a drastic remedy, one which should not be granted where there is any doubt as to the existence of a triable issue of fact (Rotuba Extruders, Inc. v Ceppos, 46 NY2d 223, 231; Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404). Issue-finding rather than issue-determination is the focus of the Court in reviewing the submissions (Sillman v Twentieth Century-Fox Film Corp., supra, at 404). All evidence must be viewed in a light most favorable to the non-moving party (Rotuba Extruders, Inc. v Ceppos, supra, at 231). To obtain such a disfavored relief a movant must establish his cause of action or defense "sufficiently to warrant the court as a matter of law in directing judgment" in his favor (CPLR 3212 [b]), and must do so by tender of evidentiary proof in admissible form (Friends of Animals v Associated Fur Mfrs. 46 NY2d 1065, 1067). The failure to make such a prima facie showing requires denial of the motion, regardless of the sufficiency of the opposing papers (Winegrad v New York Univ. Med. Center, 64 NY2d 851, 853). Conversely, once a movant has satisfied that burden the party opposing the motion would have the burden of showing facts sufficient to require a trial of any issue of fact, or demonstrate an acceptable excuse for the inability to tender such proof in admissible form (CPLR 3212 [b]; Friends of Animals v Associated Fur Mfrs., supra, at 1067-1068; Zuckerman v City of New York, 49 NY2d 557, 562).

Summary judgment is rarely appropriate in negligence cases "because even when the facts are conceded there is often a question as to whether the defendant or the plaintiff acted reasonably under the circumstances" (Andre v Pomeroy, 35 NY2d 361, 364). Here a question of fact exists as to whether Defendant actually violated 7 NYCRR 1704.6, given the terms of the CORC determination, which "accepted" Claimant's "request" for outdoor recreation without specifically finding that Defendant violated section 1704.6. Moreover, in contrast to statutory standards, violations of regulatory provisions such as those set forth in the NYCRR would merely constitute evidence of negligence, and would not establish negligence as a matter of law (see Long v Forest-Fehlhaber, 55 NY2d 154, 160 [addressing violations of the Industrial Code within 12 NYCRR Part 23]). The degree to which Defendant's conduct would be shielded from liability under principles of quasi-judicial immunity (see generally Arteaga v State of New York, 72 NY2d 212) also remains unresolved. Lastly, Defendant has raised several evidentiary challenges to exhibits upon which Claimant has relied, which are best determined upon full articulation at trial (see Exchange Leasing Corp. v Bundy, 29 AD2d 828).

Based upon the foregoing, Claimant's motion for summary judgment is denied.

March 9, 2004
Buffalo, New York

Judge of the Court of Claims