New York State Court of Claims

New York State Court of Claims

BARNES v. THE STATE OF NEW YORK, #2006-032-014, Claim No. 107072, Motion No. M-70605


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:
Arrello Barnes, Pro Se
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney GeneralBy: Glenn C. King, Assistant Attorney General, Of Counsel
Third-party defendant's attorney:

Signature date:
March 3, 2006

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant moves this Court for an order granting summary judgment for the relief requested in his claim. Defendant opposes this relief.

In September 2002, claimant was incarcerated at Upstate Correctional Facility and alleges that he sustained a cut on his tongue from pieces of glass contained in his meal. Specifically, claimant alleges that he received his meal tray in his cell from a correction officer during feed up. He states that while he was eating, he bit into something hard and saw blood on his bread. He then found pieces of green glass in his food. Claimant filed this action on December12, 2002 and now moves for summary judgment.

On a motion for summary judgment, the movant must make a prima facie showing that it is entitled to judgment as a matter of law by demonstrating the absence of any material issue of fact (see Giuffrida v Citibank Corp., 100 NY2d 72, 81 [2003]). The burden then shifts to the nonmoving party to produce admissible evidence sufficient to establish the existence of material issues of fact, requiring resolution by a fact-finder (see id.). With respect to the merits, the Department of Correctional Service has a duty to provide each inmate a sufficient quantity of wholesome and nutritious food (Correction Law § 137 [3]). Thus, defendant has a duty to ensure that the food inmates receive is free from foreign substances.

In support of his motion, claimant contends that defendant was negligent by failing to properly maintain and inspect his food tray, and he submits several reports. The reports include reports by the correction officers who delivered claimant's food, responded to claimant's cell, and a correction officer that conducted an investigation into the incident. The reports indicate that the food for inmate trays is under the direction of a civilian employee, although the trays are actually prepared by unsupervised inmates. The reports also indicate, however, that the correction officer delivering claimant's food checked the tray to make sure it contained a spork and he did not notice anything out of the ordinary. The tray was then delivered to claimant and consisted of bread, tuna and mayonnaise for claimant to make his own sandwich. Twenty minutes later, claimant summoned a correction officer and showed the officer a cut on his tongue and pieces of green glass in his food. After the incident, the inmates responsible for preparing claimant's tray were interviewed, the preparation area searched and their cells inspected for glass matching that found in claimant's food. Claimant's cell was also searched. No glass matching that found in claimant's food was found during any of these searches, nor did claimant report that he found anything suspicious in his food when he was preparing his sandwich.

Given that a correction officer viewed claimant's food before it was given to claimant and claimant, himself, made his own sandwich and did not notice anything unusual in his food, at this juncture, claimant has not established that he is entitled to judgment on his claim.

Accordingly, claimant's motion M-70605 is denied.

March 3, 2006
Albany, New York

Judge of the Court of Claims

Papers Considered:

1. Notice of Motion filed August 26, 2005; unmarked papers attached;

2. Affirmation of Glenn C. King filed September 16, 2005;

3. Claimant's Reply filed September 26, 2005.