New York State Court of Claims

New York State Court of Claims

FELIX v. THE STATE OF NEW YORK, #2008-030-550, Claim No. 114614, Motion No. M-75220


Motion for summary judgment by inmate claimant denied. Movant failed to make proper showing of entitlement to relief. Even assuming that submission of unauthenticated documentary exhibits sufficient to meet initial burden on motion, triable issues of fact are raised by such submission, in claim alleging negligent failure by correctional personnel to properly complete and send out insurance forms for mailed greeting cards as directed by claimant

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:
Defendant’s attorney:
Third-party defendant’s attorney:

Signature date:
August 18, 2008
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read and considered on claimant’s motion for summary


1,2 Notice of Motion for Summary Judgment, Affidavit in Support of Motion for Summary Judgment by Donald Felix, Claimant, and attached exhibits

  1. Affirmation in Opposition to Motion for Summary Judgment by Jeane L. Strickland Smith, Assistant Attorney General and attached exhibit
4-6 Filed papers: Claim, Answer; Felix v State of New York, UID # 2008-030-516, Claim No. 114614, Motion No. M-74550 (March 20, 2008, Scuccimarra, J.)

Donald Felix alleges in his claim that on June 19, 2007, when he went to the package room at Green Haven Correctional Facility to pick up the 500 greeting cards he had ordered - at a cost of $1.00 each - he was told by personnel that he was only allowed to possess 50 greeting cards per month, and thus could not pick up the entire package. [Claim number 114614]. Claimant took the 50 cards allowed, and was advised that the remaining 450 cards would need to be sent out of the facility. Claimant explains in his claim that the postal service insurance form is completed by staff, as inmates are not provided with same. Mr. Felix alleges that he then arranged for the remaining cards to be mailed out, “fully insured,” but the postal service insurance form negligently completed by staff only insured the package to the extent of insuring it for $50.00, in contravention of his request. When it was lost, and he made a claim for replacement with the United States Postal Service, he could not obtain full compensation and now seeks damages from the State of New York in the amount of $388.90.[1]

In its answer, in addition to general denials, defendant asserts seven affirmative defenses, including claimant’s culpable conduct or the culpable conduct of others for whom the defendant has no legal responsibility, and immunity, among others. There has been no discovery since the Court’s prior decision and order denying the defendant’s pre-answer motion to dismiss the claim. [Felix v State of New York, UID # 2008-030-516, Claim No. 114614, Motion No. M-74550 (March 20, 2008, Scuccimarra, J.)].

Claimant now moves for summary judgment, indicating that he has “summarily established the cause of action pleaded in this case, which is based on negligence . . . there are no triable issues, and . . . the defendant’s defenses asserted in the verified answer has no merit.” [Affidavit in Support of Motion for Summary Judgment by Donald Felix, Claimant ¶1].
Summary Judgment
Civil Practice Law and Rules §3212(b) provides in pertinent part:
. . . A motion for summary judgment shall be supported by affidavit, by a copy of the pleadings and by other available proof, such as depositions and written admissions. The affidavit shall be by a person having knowledge of the facts; it shall recite all the material facts; and it shall show that there is no defense to the cause of action or that the cause of action or defense has no merit. The motion shall be granted if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party . . . the motion shall be denied if any party shall show facts sufficient to require a trial of any issue of fact. If it shall appear that any party other than the moving party is entitled to a summary judgment, the court may grant such judgment without the necessity of a cross-motion.

Assuming a movant has made a prima facie showing of entitlement to judgment as a matter of law by proffering sufficient evidence to eliminate any genuine, material, issues of fact, the party in opposition to the motion for summary judgment must tender evidentiary proof in admissible form to establish the existence of material issues which require a trial. Winegrad v New York University Medical Center, 64 NY2d 851 (1985); Zuckerman v City of New York, 49 NY2d 557 (1980).

If the initial showing on a motion for summary judgment is insufficient, however, then even if papers submitted in opposition are inadequate the motion for summary judgment should be denied. In this case, claimant has furnished a series of unauthenticated documentary exhibits and repeats his own statements that the events transpired the way he avers they transpired. Such a presentation, assuming it satisfies the initial burden on the motion, only raises triable issues of fact.

Where, as here, there has been no discovery, all that has been presented are issues of fact requiring a plenary trial, including assessment of credibility of any witnesses that can only be made during a trial, not susceptible to resolution on a motion for summary judgment. Given the nature of the claim, listening to the witnesses testify and observing their demeanor as they do so is necessary.

Claimant has also included parenthetically a motion to amend the claim to include a demand for punitive damages, as well as injunctive relief to the effect the Green Haven personnel be instructed to allow inmates to complete their own United States Postal Service forms. A pleading in the Court of Claims may be amended in accordance with the provisions of § 3025(b) Civil Practice Law and Rules. See 22 NYCRR § 206.7 (b). Where the proposed amendment lacks merit as a matter of law, the Court should deny leave based upon such legal insufficiency. Punitive damages are not available against the State of New York [Sharapata v Town of Islip, 56 NY2d 332, 339 (1982)] nor may the Court direct the injunctive relief requested. The Court of Claims lacks subject matter jurisdiction to render purely equitable relief in the nature of an injunction [see Court of Claims Act § 9; Matter of Milner v New York State Higher Educ. Servs. Corp., 4 Misc 3d 221, 225 (Ct Cl 2004) affd 24 AD3d 977 (3d Dept 2005)] and would not exercise equity jurisdiction as incidental to money damages under the circumstances presented here.

Based upon the foregoing, having not met his initial burden on the motion accordingly, claimant’s motion for summary judgment is in all respects denied. Additionally, claimant’s motion to amend the claim is also denied.

August 18, 2008
White Plains, New York

Judge of the Court of Claims

[1]. Court of Claims Act §10(9) provides that an inmate in the custody of the New York State Department of Correctional Services [DOCS] who seeks damages for the alleged loss of personal property “may not” file such a claim in this court “. . . unless and until the inmate has exhausted the personal property claims administrative remedy, established for inmates by the department. Such claim must be filed and served within one hundred twenty days after the date on which the inmate has exhausted such remedy.” Defendant’s pre-answer motion to dismiss was denied, because the court found that “. . . however claimant has chosen to characterize this claim, it is nonetheless not one alleging loss or damage to property for which exhaustion of administrative remedies is required as a condition precedent to suit in the Court of Claims. Court of Claims Act §10(9) . . .What the claim is alleging is negligence, not the creation of a bailment . . . (citation omitted).” See Felix v State of New York, UID # 2008-030-516, Claim No. 114614, Motion No. M-74550 (March 20, 2008, Scuccimarra, J.).