SPIRLES v. THE STATE OF NEW YORK, #2008-044-509, Claim No. 113971, Motion Nos.
M-74164, M-74235, M-74236
Claimant’s motions: to “strike” defendant’s discovery
responses, to compel defendant’s response to a notice to admit, to amend
his claim, and for summary judgment, are all denied.
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
M-74164, M-74235, M-74236
CATHERINE C. SCHAEWE
WILLIE SPIRLES, pro se
HON. ANDREW M. CUOMO, ATTORNEY
GENERALBY: Roberto Barbosa, Assistant Attorney General
February 7, 2008
See also (multicaptioned
Claimant, an inmate proceeding pro se, filed Claim No. 113971 alleging that his
property was lost when he was transferred from general population at Elmira
Correctional Facility (Elmira) to the Special Housing Unit (SHU). Defendant
State of New York (defendant) answered and asserted several affirmative
Claimant has filed three motions in this action, all of which will be addressed
in this Decision and Order.
Claimant moves in
Motion No. M-74164 to strike defendant’s “reply to [his] discovery
demands,” and for sanctions. Defendant opposes the motion. In Motion No.
M-74235, claimant moves to compel defendant’s responses to a “demand
for addmissions [sic].”
opposes Motion No. M-74235. Lastly, claimant moves in Motion No. M-74236 for
summary judgment. Defendant opposes that motion as well.
In Motion No. M-74164, claimant moves to strike defendant’s “reply
to [his] discovery demands,” for sanctions for failing to provide legible
copies of the requested I-64 forms, and for failing to provide his
“package list.” Claimant contends that because defendant has
wilfully failed to provide the “package list,” the response should
be stricken. Conversely, defendant contends that it responded to the discovery
demand by providing legible copies of the I-64 forms requested by claimant.
Initially, claimant has failed to include a copy of his demand for disclosure
with his motion papers. Nevertheless, defendant has included a copy of said
demand, and the Court will address the merits of the motion.
In his demand, claimant requested the misbehavior report regarding “what
I’m in the box for right now,” the unusual incident report for the
same matter, the I-64 “pack up” form from SHU officers at Elmira,
and the I-64 dated February 6, 2006 from Upstate Correctional Facility
Defendant objected to providing
both the misbehavior report and the unusual incident report, arguing that they
are neither relevant nor material to prosecuting this claim for lost property.
The Court agrees. In order to recover in this claim for bailment, claimant must
establish that defendant was in lawful possession of his personal property and
then failed to return it in the same condition on demand (Claflin v
, 75 NY 260, 262 ; Pollard v State of New York
, 173 AD2d
906 ). Although the misbehavior report or the unusual incident report may
detail the circumstances surrounding claimant’s removal from general
population to SHU, neither is relevant or necessary for claimant to establish
the elements in this claim.
Further, the Court has reviewed the I-64 forms attached to defendant’s
opposition papers. The Court finds although one or two entries are extremely
difficult to read, the Upstate I-64 is relatively legible (in fact, claimant
submits it as an exhibit to his affidavit in support of his motion for summary
judgment - see Motion No. M-74236, infra). The Court does consider the
I-64 form pertaining to claimant's transfer from Elmira general population to
SHU to be illegible, as both the handwritten items and numbers are for the most
claimant’s motion is granted to the extent that defendant is directed to
provide a more legible copy of the First Elmira
Claimant moves in Motion No. M-74235 to compel defendant to respond to the
“demand for addmissions [sic],” sworn to on October 17,
Claimant has failed to include a copy
of said notice with his motion papers. Nevertheless, defendant has included a
copy of said notice, and the Court will address the merits of the motion.
Initially, a motion to compel is not available with respect to notices to admit
(CPLR 3124). A party's failure to respond at all generally is deemed an
admission (Connors, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B,
C:3123:5, at 402), and the facts set forth in such notice will be deemed as true
(Carlson v Travelers Ins. Co.,
35 AD2d 351 ). However, in this
case, defendant has refused to respond on the basis that the demand is not
proper because it seeks an admission from a person who is not a party to this
In his notice to admit, claimant proposes several questions to one “Mr.
The essence of these
questions is whether Mr. Gorrison accurately completed the I-64 which lists the
personal property in claimant’s possession when he was transferred from
Upstate to Elmira. Claimant states that the purpose of the notice to admit is
to establish that said I-64 was authentic. In his affirmation in opposition to
this motion, Assistant Attorney General (AAG) Roberto Barbosa acknowledges that
defendant provided the documentation and states that defendant will not contest
the accuracy or veracity of that document. It is apparent that the notice to
admit, had it properly been addressed to defendant, sought merely to have
defendant admit the authenticity of the Upstate I-64. Because the authenticity
of that document has now been admitted by defendant, claimant’s Motion No.
M-74235 is denied.
Claimant moves in Motion No. M-72436 both to amend the claim by increasing the
total sum sought from $180 to $309, and for summary judgment on the proposed
amended claim. Claimant seeks to include an additional $89 for the loss of his
television and an additional $40 for loss of his bed sheets. Claimant argues
that the Upstate I-64 establishes that he owned items prior to his transfer from
that facility which he claims are now missing, and that defendant is responsible
because those items are not noted as being present on the First Elmira I-64.
Conversely, defendant contends that claimant has failed to establish that he
deposited his personal property with the State and that such property was not
Claimant’s request to amend the claim to include a television and the bed
sheets must be denied. Although a television and sheets are listed on the First
Elmira I-64, they were not included in claimant’s institutional property
claim. As a result, claimant has not exhausted his administrative remedies with
respect to those items, as required under Court of Claims Act
§ 10 (9). While leave to amend a pleading shall be freely given, it will
not be permitted if the proposed amendment is plainly lacking in merit (see
CPLR 3025 [b]; Bastian v State of New York, 8 AD3d 764, 765 ).
The Court must now address claimant’s request for summary judgment. A
bailment is created when personal property is delivered into the hands of
another, who is then expected to return it in the same condition on demand
(Claflin v Meyer, supra). Defendant has an obligation to secure an
inmate's personal property (Pollard v State of New York, supra). In
order to establish his right to judgment as a matter of law, a claimant has the
initial burden of proving that his property was deposited with the State and
that the latter failed to return it upon his demand (see generally Alvarez v
Prospect Hosp., 68 NY2d 320, 324 ). Once the claimant makes the
required showing, the burden shifts to the defendant to overcome the presumption
of its negligence (Weinberg v D-M Rest. Corp., 60 AD2d 550 ).
Claimant has submitted the Upstate I-64 to establish his ownership of electric
trimmers, five personal shirts, a plastic bucket, a pair of football
and one Army (winter) coat. Claimant
listed these items as missing in his institutional property claim dated April
29, 2007. A review of the First Elmira I-64 reveals the absence of the electric
trimmers, the plastic bucket, and the pair of cleats. However, the First Elmira
I-64 shows that claimant was in possession of a winter coat, and lists 4 shirts
as compared to the 10 shirts on the Upstate I-64. The Upstate I-64 was executed
on February 6, 2006, and supports an inference only that claimant owned these
items when he was transferred from Upstate to Elmira. The First Elmira I-64,
which was executed over one year later on April 21, 2007, supports an inference
only that the listed items were in claimant’s cell when he was transferred
to SHU on that date. The inclusion of certain items on the Upstate I-64 and the
absence of those same items from the First Elmira I-64 does not establish either
claimant’s ownership of those items on April 21, 2007 or defendant’s
possession of and refusal to return them to him. Without additional evidence,
it is possible that claimant lost or otherwise disposed of these items in his
year at Elmira, prior to his transfer from general population to SHU.
The Court finds that claimant’s submission is insufficient to meet his
burden of establishing entitlement to judgment as a matter of law. Accordingly,
claimant’s Motion No.
M-74236 is denied in its entirety.
In conclusion, claimant’s Motion No. M-74164 is granted to the extent
that defendant is directed to provide a more legible copy of the First Elmira
I-64. Claimant’s Motion Nos.
M-74235 and M-74236 are denied in their entirety.
Binghamton, New York
HON. CATHERINE C. SCHAEWE
Judge of the
Court of Claims
The following papers were read on claimant’s motions:
1) Notice of Motion filed on November 5, 2007; Affidavit of Willie Spirles
sworn to on November 1, 2007.
2) Affirmation in Opposition of Roberto Barbosa, AAG, dated November 9, 2007,
and attached Exhibits A through C.
3) Motion to Compel filed on November 13, 2007; Affidavit of Willie Spirles
sworn to on November 8, 2007.
4) Affirmation in Opposition of Roberto Barbosa, AAG, dated December 5, 2007,
and attached Exhibits A through C.
5) Affidavit in Reply of Willie Spirles sworn to on December 18, 2007, and
6) Motion for Summary Judgment filed on November 16, 2007; Affidavit of Willie
Spirles sworn to on November 13, 2007, and attached exhibits.
7) Affirmation in Opposition of Roberto Barbosa, AAG, dated December 7, 2007,
and attached Exhibits A and B.
8) Affidavit in Response of Willie Spirles sworn to on December 18,
Filed papers: Claim filed on July 18, 2007; Verified Answer filed on August 24,
2007; Amended Claim filed on September 5, 2007; Verified Answer to Amended Claim
filed on October 25, 2007.
. Claimant’s previous motions
pertaining to this claim - for permission to file an amended claim (Motion No.
M-73935) and to compel disclosure (Motion No. M-74041) - were denied (Spirles
v State of New York,
Ct Cl, Dec. 11, 2007, Schaewe, J., Claim No. 113971,
Motion Nos. M-73935, M-74041 [2007-044-596]).
. In the alternative, claimant essentially
seeks an interlocutory judgment of liability based upon defendant’s
failure to respond. In light of the Court's denial of claimant's motion, this
request for relief need not be addressed.
. The court will refer to the later I-64 as
the Upstate I-64.
. This I-64 form reflects the contents of
four bags of claimant’s personal property, and shall be referred to as the
First Elmira I-64. Claimant’s property was apparently thereafter
condensed into two bags and another I-64 form was issued (the Second Elmira
Motion No. M-74236, infra
. Once defendant provides a legible copy,
claimant’s demand for the “I-64 ‘pack up’ ” will
be fully satisfied.
. Although claimant has entitled the document
“Admit or Denide [sic] Pursuant to [CPLR] 3123,” it is essentially a
notice to admit and will be referred to as such herein.
. Based upon the Upstate I-64, it appears
that Mr. Gorrisor is actually S. Gorrison, a correction officer who packed and
inventoried claimant’s personal property when he was transferred from
Upstate to Elmira.
. This item was actually listed on the
Upstate I-64 as baseball shoes with rubber cleats.