New York State Court of Claims

New York State Court of Claims

COLLINS v. THE STATE OF NEW YORK, #2006-037-012, Claim No. 111679, Motion Nos. M-71451, CM-71494


Case Information

1 1.The caption has been amended to reflect that the only proper Defendant is the State of New York.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The caption has been amended to reflect that the only proper Defendant is the State of New York.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):
Claimant’s attorney:
Sri Clyde Collins, Pro Se
Defendant’s attorney:
Hon. Eliot Spitzer
New York State Attorney General
By: Paul Volcy, Esq.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
June 8, 2006

Official citation:

Appellate results:

See also (multicaptioned case)


Pro se inmate brings a motion to compel discovery (M-71451), and Defendant cross-moves for summary judgment or, in the alternative, for a change of venue (CM-71494). The following were read and considered with respect to these motions:
1. Claimant’s notice of motion to compel discovery (M- 71451) dated March 17, 2006,

and affidavit of pro se Claimant, Sri Clyde Collins, sworn to March 17, 2006, with annexed Exhibits A-B;

2. Defendant’s notice of cross-motion for summary judgment or for a change of venue

(CM- 71494) dated March 29, 2006, and affirmation of Assistant Attorney General Paul Volcy dated March 28, 2006, in support of Defendant’s cross-motion and in opposition to Claimant’s motion, with annexed Exhibits A-J;

3. Claimant’s affirmation in opposition[2] sworn to April 10, 2006, with annexed Exhibits


Filed papers: Claim filed November 29, 2005; Answer filed January 4, 2006.

This is a claim for loss of personal property wherein it is alleged that Claimant’s typewriter was intentional damaged by employees of the New York State Department of Correctional Services (DOCS) while Claimant was incarcerated at Gowanda Correctional Facility (Gowanda) or at Fishkill Correctional Facility (Fishkill). Initially, the Court will address Defendant’s cross-motion for summary judgment as the disposition of this cross-motion could obviate the need to address Claimant’s motion for discovery.

According to the claim, on February 10, 2005, a new Brothers SX-4000 typewriter was shipped to Claimant at Gowanda. Claimant first learned that the typewriter had been received at Gowanda on February 22, 2005. At that time, however, he was confined to Gowanda’s special housing unit (SHU), and subsequently transferred to Fishkill’s S-200 Block for another six months of confinement.[3] On August 25, 2005, Claimant was transferred to Oneida Correctional Facility (Oneida) and on August 29, 2005, he received his property which had originally been packed at Gowanda. According to Claimant, the typewriter, which was still in the original packing box, was irreparably damaged when received.

Defendant alleges that there is no documentary evidence to support Claimant’s assertion that the typewriter had been damaged before Claimant took possession of it. In support Defendant attaches to the motion papers a copy of the original 2064 personal property transfer (I-64) form and the local permit for the typewriter (see Defendant’s Exhibit G). There is no indication on the original I-64 form or on the permit of any damage to the typewriter. According to Defendant, the only written notation as to damage to the typewriter appears solely on Claimant’s copy of the I-64 form attached to the inmate grievance claim form (form 1421) submitted by Claimant on September 21, 2005, as part of his administrative remedies, twenty-three days after the typewriter had been turned over to him.

In opposition, Claimant attaches to his opposition papers a copy of a memorandum from J. W. Badger, Deputy Superintendent for Administration at Oneida, referencing Claimant’s letters of September 7 and September 12, 2005, regarding his administrative claim for damages to his typewriter, and unsworn statements from two inmates, who allegedly worked as porters/clerks in the Draft Processing Area at Oneida, stating that the typewriter was indeed broken when turned over to Claimant on August 29, 2005, and that Correction Officer (CO) Pape indicated the damage only on the Claimant’s copy of the I-64 form because the typewriter was brought to the processing table after Claimant’s bagged property and the original I-64 form had been completed.

Summary judgment is a drastic remedy which should only be granted where there are no issues of fact and the claim may be decided as a matter of law (Sillman v Twentieth Century-Fox Film, Corp., 3 NY2d 395 [1957]). The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, eliminating any material issues of fact (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]). The Court’s function is to determine if an issue of fact exists after reviewing the evidence in a light most favorable to the non-moving party (Rotuba Extruders v Ceppos, 46 NY2d 223 [1978]). Summary judgment is generally unavailable where questions of credibility are concerned, as credibility issues must be resolved at trial by the trier of fact (Butzer v Scharf, 263 AD2d 862 [1999]).

Here, a central issue in determining liability is whether the typewriter was broken when it was turned over to Claimant at Oneida on August 29, 2005. In determining this issue, the Court will have to assess the credibility of key witnesses, including the Claimant and CO Pape who signed the original I-64 form. In this circumstance, summary judgment is simply inappropriate. Defendant’s motion is denied.

In the event that its motion for summary judgment was denied, Defendant also moved for a change of venue from Erie County to Oneida County.[4] Because there are no provisions in the Court of Claims Act governing motions for change of venue, relevant portions of the CPLR apply (Richards v State of New York, 281 AD 947 [1953]). CPLR § 510 (3) provides for a discretionary change of venue where “the convenience of material witnesses and the ends of justice will be promoted by the change.” The party seeking the change of venue must identify the witnesses and the substance of their testimony (Stainbrook v Colleges of Senecas, 237 AD2d 865 [1997]).

Defendant surmises that the allegation in the claim that Claimant’s typewriter was intentionally and maliciously damaged while at Gowanda formed the basis of the Clerk of this Court’s determination to venue this matter in the Buffalo District, where Gowanda is located. Defendant argues that the final determination of this matter will turn on the credibility of the Claimant and of CO Pape who are both presently located at Oneida, within the Utica District. Claimant opposes the motion on the grounds that he will probably be released soon and intends to reside in the Rochester area.

The Court agrees with Defendant that the district with the greatest nexus to this claim is the Utica District where Claimant first gained possession of the typewriter and where all of the material witnesses are presently located. Indeed, even if Claimant is released in the near future, the Rochester District has no connection to this claim. Moreover, if this matter goes to trial, Claimant will undoubtedly seek judicial subpoenas for the trial testimony of inmates Cardlin Martin and Walter Allen, whose statements were used as part of Claimant’s opposition to Defendant’s motion for summary judgment. Both of these potential witnesses are incarcerated at Oneida in the Utica District. Because the Utica District has the greatest nexus to this claim and because all of the material witnesses are presently located within this district, the Court is satisfied that the interests of justice will best be served by granting Defendant’s motion and transferring this claim from the Buffalo District to the Utica District.

The final matter before this Court is Claimant’s motion to compel discovery. Generally, a party is entitled to “full disclosure of all matter material and necessary in the prosecution or defense of an action” (CPLR § 3101[a]). Interrogatories are one type of disclosure device that is frequently used in lieu of depositions where an incarcerated individual is a party. The responding party, however, need not respond to interrogatories that are overly broad or oppressive, demand extensive amounts of irrelevant material, and call for opinions and interpretations (Vancek v International Dynetics Corp., 78 AD2d 842 [1980]). Here, Claimant is basically seeking to recover damages for a broken typewriter which he alleges was damaged while being transported from Gowanda to Fishkill to Oneida where it was finally turned over to him. These allegations sound in bailment. Many of the subject interrogatories, however, are overly broad and oppressive, and seek irrelevant and immaterial information which will not lead to the discovery of information relevant to this straight forward bailment cause of action (see generally Lopez v Huntington Autohaus, 150 AD2d 351 [1989]). In this regard, the Court finds that interrogatories 2,3,4,12 and 13 are objectionable as being overly broad and oppressive and will not compel Defendant to respond to them.

The remaining interrogatories, namely, 1,5,6,7,8,9,10,11,14,15,16,and 17 basically request information regarding the receipt of the typewriter by DOCS at Gowanda and the transport by DOCS of the typewriter from Gowanda to Fishkill to Oneida where Claimant received it. Surely, Claimant is entitled to try to establish that the typewriter was damaged somewhere along this route while it was still under the control of DOCS. These interrogatories seek information which may be material and necessary to the prosecution of this claim, and responses will, therefore, be compelled.

Based on the foregoing, it is hereby

ORDERED, that Defendant’s cross-motion for summary judgment (CM-71494) is denied; and it is

ORDERED, that Defendant’s cross-motion for a change of venue (CM-71494) is granted and this claim transferred from the Buffalo District to the Utica District; and it is further

ORDERED, that Claimant’s motion to compel responses to interrogatories (M-71451) is granted, in part. Defendant shall provide responses to interrogatories 1, 5 through 11, and 14 through 17 within 30 days of the filing of this Decision and Order.

June 8, 2006
Buffalo, New York

Judge of the Court of Claims

[2]. Pursuant to CPLR Rule 2106, only an attorney or a non-party doctor, osteopath or dentist authorized to practice in the State of New York may serve and file an affirmation in lieu of an affidavit. Attached to Claimant’s affirmation, however, is a verification sworn to before a Notary Public by the Claimant. Because Claimant’s affirmation has been verified, it will be received and treated as an affidavit.
[3]. Pursuant to 7 NYCRR § 302.2(g), other than a few personal items not relevant herein, inmates are not allowed possessions while incarcerated in SHU.
[4]. The Court of Claims is organized by district, not county (see 22 NYCRR 206.4). Therefore, any venue change would be by district, not county.