New York State Court of Claims

New York State Court of Claims

JABBAR v. THE STATE OF NEW YORK, #2006-044-504, Claim No. 112376, Motion Nos. M-72082, M-72223


Claimant’s motion for poor person status and assignment of counsel denied. Questions of fact exist on bailment cause of action requiring denial of claimant’s motion for summary judgment. After searching the record, the Court granted summary judgment to defendant dismissing claimant’s cause of action for return of property removed by the facility, as claim was untimely.

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):
M-72082, M-72223
Cross-motion number(s):

Claimant’s attorney:
Defendant’s attorney:
HON. ELIOT SPITZER, ATTORNEY GENERALBY: Geoffrey B. Rossi, Esq., Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
October 20, 2006

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read on claimant’s motion for leave to proceed as a poor person and assignment of counsel, and by a second motion, for summary judgment on his claim for property damage:

(1) Claimant’s Petition requesting assignment of counsel; Affidavit of Samuel Abdul Jabbar sworn to on May 22, 2006.

(2) Claimant’s Notice of Motion for summary judgment; Affidavit of Samuel Abdul Jabbar sworn to on August 30, 2006 with annexed Exhibits.

(3) Affirmation of Geoffrey B. Rossi, AAG dated September 8, 2006 with annexed Exhibits A through E.

Claimant moves for leave to proceed as a poor person and assignment of counsel, and by a second motion, for summary judgment on his claim for property damage. Defendant opposes the motion for summary judgment and informally moves for partial summary judgment.[1]

Claimant filed this claim to recover for physical damage to his Smith Corona typewriter (hereinafter the “typewriter”), for confiscation of his digital television and for emotional injuries suffered as a result thereof. In his first cause of action, claimant alleges that in April 2006, the typewriter was damaged during transit from Elmira Correctional Facility to Cayuga Correctional Facility. Claimant’s second cause of action is for return or replacement of his “digital KTV” which he alleges was taken from him in 2001. Claimant asserts that he has suffered emotional distress because of these incidents.

Initially, claimant requests that he be permitted to prosecute this action as a poor person and that the Court assign counsel to represent him. CPLR 1101 (c) requires that “if an action has already been commenced, notice of the motion shall be served on all parties, and notice shall also be given to the [C]ounty [A]ttorney in the county in which the action is triable.” Notice to the County Attorney is required because certain costs such as filing or transcription fees may be a county charge (see CPLR 1102) and the failure to comply with the notice requirement renders an application defective (Sebastiano v State of New York, 92 AD2d 966; Harris v State of New York, 100 Misc 2d 1015, 1016). Claimant has failed to file proof of service of his motion for poor person status on either the Attorney General or the appropriate County Attorney's office and his motion for that relief may be denied solely on that basis.

However, even if the lack of service on the County Attorney was not fatal, assignment of counsel in civil matters is discretionary and generally is denied except in cases involving grievous forfeiture or the loss of a fundamental right (see Matter of Smiley, 36 NY2d 433; Hines v State of New York, Ct Cl, June 21, 2005, Sise, P.J., Claim No. 110624, Motion M-69991 [UID # 2005-028-534]). In this action, claimant seeks to recover for damaged personal property. There is no constitutional or statutory authority for the assignment or compensation of counsel under the present circumstances and this Court will not exercise its discretion to assign counsel in this matter (see Matter of Smiley, supra). The filing fee in this matter has already been reduced by order dated June 13, 2006 and the prosecution of this claim requires no further costs or fees. To the extent claimant is required to mail pleadings to the Clerk’s office and to defendant, “[d]efendant provides limited free postage on a weekly basis and permits advances for legal mail postage, if the inmate has insufficient funds” (Hines v State of New York, Ct Cl, supra). Claimant’s motion for leave to proceed as a poor person and for assignment of counsel is denied.

The Court next turns to claimant’s motion for summary judgment. To support his first cause of action, claimant has submitted a copy of an invoice totaling $194.00 for repair of the typewriter. Claimant asserts that when he was transferred from Elmira Correctional Facility, the typewriter was packed in a bag “by itself.” Claimant alleges that upon his arrival at Cayuga Correctional Facility, the typewriter was badly damaged. Claimant has set forth evidence that his property was delivered to defendant and defendant failed to return it in the same condition and, therefore, claimant has met his burden of establishing a prima facie right to judgment as a matter of law (see Pollard v State of New York, 173 AD2d 906).

In opposition, defendant has provided documentation showing that claimant’s personal property, including the typewriter, was packed at Elmira Correctional Facility on April 2, 2006 and arrived at Cayuga Correctional Facility on April 4, 2006. Claimant signed the document acknowledging the transfer out of Elmira and into Cayuga without indicating any damage. In an interoffice memorandum dated April 21, 2006, Correction Officer L. Cottrell states that he processed claimant into Cayuga Correctional Facility on April 4, 2006 and that he had no knowledge that the typewriter was damaged.[2] Given the evidence before this court, there are questions of fact as to whether the alleged damage to the typewriter occurred during the transfer from Elmira to Cayuga. Claimant’s motion for summary judgment on the first cause of action is denied.

Claimant’s second cause of action alleges that defendant removed his digital television because of security reasons. In its answer, defendant has asserted that this cause of action is untimely and, as such, this Court lacks subject matter jurisdiction. Notwithstanding the absence of a formal cross motion, this Court has the authority to search the record and grant summary judgment to any nonmoving party (see CPLR 3212 [b]). It appears that claimant is seeking money damages for the digital television which he states was removed, allegedly because of security concerns at Elmira. Claimant is challenging the facility’s implementation of its policy which led to the removal of his digital television. Under these circumstances, claimant’s remedy was to follow the inmate grievance procedure and, if necessary, seek judicial review pursuant to CPLR article 78.

Moreover, to the extent that this cause of action can be considered a bailment under Court of Claims Act § 10 (9), it is untimely. “A claim of any inmate in the custody of the department of correctional services for the recovery of damages for injury to or loss of personal property may not be maintained unless and until the inmate has exhausted the personal property claims administrative remedy [and the] claim must be filed and served within [120] days after the date on which the inmate has exhausted such remedy” (Court of Claims Act § 10 [9]). Claimant alleges that the digital television was removed sometime in 2001. By letter dated August 7, 2001, Deputy Commissioner Lucien J. Leclaire Jr. acknowledged that digital televisions were not allowed at Elmira Correctional Facility and that claimant had been provided with a loaner television set. The letter appears to have exhausted claimant’s administrative remedies, and this claim filed on May 25, 2006 is therefore untimely.[3] The second cause of action is dismissed as time-barred.

Claimant’s cause of action for emotional distress is also without merit. It is well-settled that “ ‘[d]amages are not recoverable for mental distress caused by malicious or negligent destruction of personal property’ including injury to or loss of such property” (La Mountain v State of New York, Ct Cl, June 5, 2006, Collins, J., Claim No. 111563, Motion Nos. M-71338, M-71339 [UID # 2006-015-095], p 3, quoting Probst v Cacoulidis, 295 AD2d 331, 332). To the extent that claimant may be alleging that the typewriter was intentionally damaged, claims for the intentional infliction of emotional distress cannot be brought against the State of New York (see Brown v State of New York, 125 AD2d 750, lv dismissed 70 NY2d 747).[4]

Claimant’s Motion No. M-72082 to proceed as a poor person and for assignment of counsel is denied. Claimant’s Motion No. M-72223 for summary judgment is denied. The Court has searched the record and partial summary judgment dismissing the causes of action for removal of claimant’s digital television and for emotional distress is granted to defendant, leaving the sole remaining cause of action for damage to claimant’s typewriter.

October 20, 2006
Binghamton, New York

Judge of the Court of Claims

[1]. Although the responding papers are entitled “Affirmation in Opposition to Motion for Summary Judgment & Cross-Motion to Dismiss Claims,” a notice of cross motion was not filed with the Court Clerk’s Office.
[2]. Claimant filed an inmate claim form for the typewriter damage. Cottrell’s interoffice memorandum apparently was generated during the administrative investigation. The administrative claim was ultimately denied.
[3]. Even if this cause of action was for recovery of damages based upon an intentional act under Court of Claims Act § 10 (3-b), the claim was required to be served and filed within 90 days of its accrual and, again, would be untimely.
[4]. At one point, claimant avers that the damage to the typewriter was deliberate and intimates that the motive was to prevent him from pursuing a medical malpractice action.