Claimant, an inmate appearing pro se, filed a claim alleging (among other
things) that he was denied the opportunity for recreation while incarcerated at
Southport Correctional Facility (Southport) because of the braids in his hair,
and also that he was inappropriately denied compliance with a medically-ordered
clipper permit (for trimming his beard). Claimant now moves for partial summary
and further requests an order
striking defendant's answer.
of New York opposes the motion.
The motion must be denied. Multiple motions for summary judgment are not
favored by the courts in the absence of newly discovered evidence or other
sufficient cause (Detko v McDonald's Rests. of N.Y., 198 AD2d 208 ,
lv denied 83 NY2d 752 ; Inter-Power of N.Y. v Niagara Mohawk
Power Corp., 259 AD2d 932 , lv denied 93 NY2d 812 ).
Neither newly discovered evidence nor any other sufficient cause for another
such motion has been shown in this instance.
Moreover, claimant, as the proponent of a summary judgment motion, is required
to set forth evidentiary facts in admissible form which establish a prima facie
showing of entitlement to judgment as a matter of law (Winegrad v New York
Univ. Med. Ctr., 64 NY2d 851, 853 ; Zuckerman v City of New York,
49 NY2d 557, 562 ). Once this burden has been met, it is incumbent
upon the opposing party to produce admissible evidence sufficient to create
material issues of fact requiring a trial of the action (Alvarez v Prospect
Hosp., 68 NY2d 320, 324 ). However, absent such a prima facie showing
by the movant, the motion must be denied, regardless of the sufficiency of the
opposing papers (Winegrad v New York Univ. Med. Ctr., supra).
Claimant has not made the requisite prima facie showing. While he alleges that
he was denied recreation as a result of his braids, the facility memorandum he
submitted indicates that inmates with braids in violation of the Department of
Correctional Services (DOCS) Grooming Standards will be allowed to take
recreation if DOCS staff conducts a “frisk” of the braids.
Moreover, in response to the inmate grievance form filed by claimant on this
issue, the investigative report indicates: “there is no record of grievant
being denied exercise.” There are obviously questions of material fact
which can only be resolved at trial, and thus summary judgment on this portion
of claimant's claim is not warranted (see
As previously set forth, claimant also asserts in his claim that he was not
provided with barber services despite having been issued a “clipper
permit” to have his beard trimmed two times per month for medical
purposes. Notwithstanding the absence of a cross motion, this Court has the
authority to search the record and grant summary judgment to the nonmoving party
(see CPLR 3212 [b]; see generally WFR Assoc. v Memorial Hosp., 14
AD3d 840 ). The claim contains no assertion whatever of any injuries
incurred as a result of defendant's alleged failure to provide barber services.
Accordingly, this portion of the claim does not comply with Court of Claims Act
§ 11, and must be dismissed (see Patterson v State of New York, 54
AD2d 147, 149 , affd 45 NY2d 885 ; Tafari v State of New
York, Ct Cl, Apr. 3, 2003, Minarik, J., Claim No. 103164, Motion No. M-65946
[UID # 2003-031-013]).
Turning to the brief portion of claimant's affidavit which requests that
defendant's answer be stricken, it should first be noted that claimant provides
no basis for striking the answer. Further, claimant's previous motion to strike
defendant's affirmative defenses was denied by the Court, which stated in
pertinent part: “[t]he court has reviewed the State's affirmative defenses
and finds that none are prejudicial or scandalous in any respect whatsoever and
the State properly included all these affirmative defenses in its verified
answer to the supplemental claim” (Green v State of New York, Ct
Cl, Sept. 26, 2005, Lebous, J., Claim No. 109512, Motion No. M-70591 [UID #
Claimant's motion to strike defendant's answer is denied. Claimant's motion
for summary judgment is denied. That portion of the claim pertaining to
defendant's alleged denial of barber services to claimant is dismissed.
. Claimant has filed numerous motions
regarding this particular claim over the years, including multiple motions to
compel discovery, and at least two motions for partial summary judgment on the
issue of liability, both of which were denied (Green v State of New York,
Ct Cl, Dec. 26, 2007, Schaewe, J., Claim No. 109512, Motion No. M-73700;
Green v State of New York,
Ct Cl, Sept. 26, 2005, Lebous, J., Claim No.
109512, Motion No. M-70591 [UID # 2005-019-572]).
. In Green v State of New York
Sept. 26, 2005, Lebous, J., Claim No. 109512, Motion No.