New York State Court of Claims

New York State Court of Claims

REID v. THE STATE OF NEW YORK, #2006-015-075, Claim No. 111123, Motion No. M-71006


Synopsis


Claimant failed to overcome presumption of due execution of release by clear and convincing evidence. Presumption supported dismissal of personal property claim. Claimant cannot recover damages for mental anguish in connection with personal property claim.

Case Information

UID:
2006-015-075
Claimant(s):
CEDRIC REID
Claimant short name:
REID
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
111123
Motion number(s):
M-71006
Cross-motion number(s):

Judge:
FRANCIS T. COLLINS
Claimant’s attorney:
Cedric Reid, Pro Se
Defendant’s attorney:
Honorable Eliot Spitzer, Attorney General
By: Kathleen M. Arnold, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
February 27, 2006
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Defendant's motion to dismiss the claim pursuant to CPLR 3211 (a) (5) on the ground that the cause of action may not be maintained as a result of payment and release is granted. The claim filed on July 11, 2005 alleges that the claimant reported to the package room at Great Meadow Correctional Facility, Comstock, New York on March 11, 2005 where he was advised that a rain suit he had ordered was being returned to the vendor as an unauthorized item. DOCS regulations permit only clear vinyl and the rain suit received was alleged to have been colored. Despite his protests that the item was properly received claimant's account was charged $5.79 for the cost of returning the rain suit. He filed an inmate property claim seeking the return of the $5.79 along with $4.00 representing the purported cost of re-shipping the item and $0.40 for the cost of photocopying 8 exhibits for a total of $10.19. That administrative claim (040-0021-05) was approved in the amount of $5.79 only at both levels of the administrative process (see claimant's exhibits A and B). Thereafter claimant filed a second inmate property claim (040-0072-05) seeking to recover the $4.00 charge for re-shipment of the returned rain suit. That claim was disapproved by the Acting Superintendent on June 6, 2005 (see claimant's Exhibits C and D). On June 30, 2005, unbeknownst to the claimant, the second claim was reevaluated and the $4.00 re-shipping charge was restored to claimant's inmate account (see defendant's Exhibit D). The claim herein seeks return of the $4.00 re-shipping cost, $2,500 for mental anguish and reimbursement of the $50.00 Court of Claims filing fee.

The defendant moves to dismiss the claim based upon the Fifth Affirmative Defense raised in the answer which states: "The State's liability, if any, will be limited by any payment claimant has accepted or will accept on an administrative claim for losses alleged herein or by any release claimant has executed pertaining to liability alleged herein." In support of its position the defendant attached a photocopy of a "claim" and a "claim and release" bearing claimant's signature and sworn to before a notary on June 23, 2005 (see defendant's Exhibit C). The "claim and release" states the following:
I, the undersigned, in consideration of the sum of Four and 00/100 DOLLARS ($ 4.00) to me in hand paid by the State of New York, the receipt whereof is hereby acknowledged, do for myself, my heirs, executors, administrators and assigns, release and discharge the said State of New York, its officers, agents and employees, from all claims, demands and liability of every kind and nature, legal or equitable, occasioned by or arising out of the facts set forth in the foregoing claim, and in case any claim shall have been filed by me with the Clerk of the Court of Claims for said damages at any time prior to the date of this release, I consent and stipulate that an order may be made by the Court of Claims without notice to me dismissing said claim upon the merits.

IN WITNESS WHEREOF, I have hereunto set my hand and seal this 23 day of June 2005.

Although claimant asserts in opposition to the motion that he did not "swear before any notary public on June 23, 2005" he does not specifically deny that he signed the release attached to the defendant's moving papers as a part of Exhibit C. Nor does claimant deny that $4.00 was deposited into his inmate account on June 30, 2005 as alleged by defense counsel in her affirmation in support, and as appears from the inmate statement attached to the moving papers as Exhibit D.

"[W]here a document on its face is properly subscribed and bears the acknowledgment of a notary public it 'give[s] rise to a presumption of due execution, which may be rebutted only upon a showing of clear and convincing evidence to the contrary' (Spilky v Bernard H. LaLone, Jr., P.C., 227 AD2d 741, 743)" (Smith v Smith, 263 AD2d 628, 629, lv dismissed 94 NY2d 797; see also Lum v Antonelli, 102 AD2d 258, affd 64 NY2d 1158). No such showing has been made here.

Defendant's motion to dismiss the claim is granted.


February 27, 2006
Saratoga Springs, New York

HON. FRANCIS T. COLLINS
Judge of the Court of Claims


The Court considered the following papers:
  1. Notice of motion dated December 2, 2005;
  2. Affirmation of Kathleen M. Arnold dated December 2, 2005 with exhibits;
  3. "Notice of Motion in Opposition to Dismissal" dated December 19, 2005;
  4. "Affirmation" of Cedric Reid dated December 19, 2005 with exhibits.