New York State Court of Claims

New York State Court of Claims

GREEN v. THE STATE OF NEW YORK, #2008-044-504, Claim No. 109512, Motion No. M-74167


Claimant's third motion in same claim for partial summary judgment denied by Court due to remaining questions of material fact. Claimant's motion to strike answer denied, as no basis for striking answer was provided, and claimant's previous motion to strike affirmative defenses had been denied. Partial summary judgment granted to defendant where claim contained no allegations that claimant was injured by defendant's alleged failure to provide barber services.

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:
HON. ANDREW M. CUOMO, ATTORNEY GENERALBY: James E. Shoemaker, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
February 4, 2008

Official citation:

Appellate results:

See also (multicaptioned case)


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 judgment[1] and further requests an order striking defendant's answer.[2] Defendant State 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 [1993], lv denied 83 NY2d 752 [1994]; Inter-Power of N.Y. v Niagara Mohawk Power Corp., 259 AD2d 932 [1999], lv denied 93 NY2d 812 [1999]). 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 [1985]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). 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 [1986]). 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 id.).[3]

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 [2005]). 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 [1976], affd 45 NY2d 885 [1978]; 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 # 2005-019-572], supra).

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.

February 4, 2008
Binghamton, New York

Judge of the Court of Claims

The following papers were read on claimant’s motion:

1) Motion for Partial Summary Judgment filed on October 29, 2007; Affidavit of Shawn Green sworn to on October 23, 2007; Memorandum of Law dated October 23, 2007, and attached exhibits.

2) Affirmation in Opposition of James E. Shoemaker, AAG, dated November 21, 2007, and attached exhibits.

3) Reply of Shawn Green filed on December 3, 2007.

Filed papers: Claim filed on June 21, 2004; Verified Answer filed on July 23, 2004; Supplemental Claim filed on July 19, 2004; Verified Answer to Supplemental Claim filed on August 16, 2004.

[1]. 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]).

[2]. In Green v State of New York (Ct Cl, Sept. 26, 2005, Lebous, J., Claim No. 109512, Motion No.
M-70591 [UID # 2005-019-572], supra), claimant also requested that the Court strike defendant's affirmative defenses, which request was denied by the Court as well.
[3]. Claimant's assertion in his reply papers that “[t]he essential elements for breach of duty claim has [sic] been met with [defendant's] failure to assert the threat a hair styles [sic] like braids present [sic] to the safety or security of facility” is, needless to say, an inaccurate statement of the burden of proof in this case.