New York State Court of Claims

New York State Court of Claims

PERKINS v. THE STATE OF NEW YORK, #2008-031-063, Claim No. 114315, Motion Nos. M-75287, CM-75498


Claimant’s unsupported motion for summary judgment is denied. Claimant’s failure to exhaust administrative remedies prior to filing claim requires dismissal of lost property cause of action. However, as claim sets forth a valid cause of action relating to dental neglect, Defendant’s motion to dismiss is granted only in part

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:
New York State Attorney General
BY: BONNIE GAIL LEVY, ESQ.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
December 11, 2008

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read on motion by Claimant for summary judgment and on cross-motion by Defendant for dismissal of the claim:
  1. Claimant’s Notice of Motion (M-75287), filed July 28, 2008, with attached
2) Defendant’s Notice of Cross-Motion (CM-75498), filed September 8, 2008;
3) Affirmation of Bonnie Gail Levy, Esq., dated September 5, 2008, with attached exhibits;
4) Filed papers: Claim. In his claim filed on October 4, 2007, Mr. Perkins alleges that Defendant was negligent in confiscating and then failing to return his lower partial dentures. The claim clearly asserts a cause of action in which Claimant requests $5,000.00 for this lost property. Currently, I have before me two motions. With motion M-75287, Claimant seeks summary judgment, apparently based upon previous indications from Defendant relating to its willingness to replace the partial dentures at its own expense (my understanding is that, to date, Defendant has not followed through with this offer). Accordingly, Claimant asserts that he is entitled to summary judgment in the amount of $5,000.00. With cross-motion CM-75498, Defendant seeks dismissal of the claim based upon Claimant’s failure to exhaust his administrative remedies prior to commencing this action as required by Court of Claims Act § 10(9).

Dealing first with Claimant’s application, I find that Claimant has failed to meet his burden of demonstrating his entitlement to such relief. In any application for summary judgment, the moving party bears a heavy burden of establishing that he or she is entitled to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact (Andre v Pomeroy, 35 NY2d 361; Winegrad v New York Univ. Med. Center, 64 NY2d 851, 853). Summary judgment is a drastic remedy which deprives a party of its day in court and should not be granted where there is any doubt as to the existence of a material issue of fact (Moskowitz v Garlock, 23 AD2d 943; Epstein v Scally, 99 AD2d 713). As Defendant correctly points out, in addition to Claimant’s failure to submit either a copy of the pleadings, or a supporting affidavit setting forth why the requested relief should be granted, Claimant has also failed to offer evidence demonstrating that there exists no question of fact. Defendant’s offer to replace Claimant’s dentures is not the same as an admission of liability. Furthermore, Claimant has submitted no proof relating to the value of the allegedly lost partial dentures. Accordingly, I must deny Claimant’s motion.

Turning to Defendant’s cross-motion, I note that Defendant argues for dismissal of the claim based upon Claimant’s failure to exhaust his administrative remedies prior to filing his claim. Submitted with Claimant’s application as exhibit A is Defendant’s initial response to Claimant’s underlying administrative claim. In that document, Defendant approved Claimant’s administrative claim to the extent of indicating that Claimant’s partial dentures would be replaced at State expense. Interestingly, this document was signed on October 5, 2007, the day after the claim was filed. It is unclear from the documents submitted why Defendant did not follow through and replace Claimant’s dentures at its own expense. It is clear, however, that at the time the claim was filed, Claimant had, as yet, not exhausted his administrative remedies.

Defendant correctly points out that when a claim is for damages for the loss of personal property of an inmate confined in a State facility, the provisions of Court of Claims Act § 10(9) are controlling. That section reads:
“A claim of any inmate in the custody of the department of correctional services for recovery of damages for injury to or loss of personal property may not be filed 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.” (Emphasis added).
Based upon this information, I find that the Claimant did not exhaust his administrative remedies prior to filing his claim in this matter. The fact that Claimant may have subsequently exhausted his administrative remedies does not avail Claimant, as this Court must view the record as of the time the claim was filed on October 4, 2007 (Tafari v State of New York, Ct Cl, December 9, 2002 [Claim No. 106576, Motion No. M-65889], Lebous J., UID No. 2002-019-591; Court of Claims Act § 10[9], supra). Accordingly, Claimant’s lost property cause of action must be dismissed.

However, although the claim in this matter is far from perfectly drafted, I note that the pleadings of pro se litigants should be liberally construed, and that they are held to “less stringent standards than formal pleadings drafted by lawyers” (Haines v Kerner, 404 US 519, 520). Unless a cause of action cannot be discerned from the four corners of the claim, a motion to dismiss should be denied “whether the pleading’s language is wretched or poetic” (Siegel, Practice Commentaries, McKinney's Cons. Laws of NY, Book 7B, CPLR C3013:7). Claimant has alleged that he needs his lower partial dentures, that he has trouble biting and chewing his food and that Defendant has inexplicably failed to provide him with replacement dentures (regardless of how they were lost) for approximately one and one half years. I find that the original claim does set forth a valid cause of action relating to Defendant’s alleged medical/dental neglect.

Based upon the foregoing, it is hereby

ORDERED, that Claimant’s motion (M-75287) for summary judgment is DENIED. And it is further;

ORDERED, that Defendant’s cross-motion for dismissal of the claim is GRANTED to the extent that Claimant’s cause of action for lost property is dismissed, but in all other respects DENIED.

December 11, 2008
Rochester, New York

Judge of the Court of Claims