3. Claimant’s affirmation in opposition
sworn to April 10, 2006, with annexed Exhibits
Filed papers: Claim filed November 29, 2005; Answer filed January 4,
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
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
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 ). 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 ). 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 ). 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 ).
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
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 ). 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
, 237 AD2d 865 ).
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 ). 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 ). 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.