New York State Court of Claims

New York State Court of Claims

GILLARD v. THE STATE OF NEW YORK, #2009-032-105, Claim No. 112925, Motion No. M-75517


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:
Gary Gillard, Pro Se
Defendant’s attorney:
Hon. Andrew M. Cuomo, NYS Attorney GeneralBy: James E. Shoemaker, Assistant Attorney General, Of Counsel
Third-party defendant’s attorney:

Signature date:
January 26, 2009

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant has moved for summary judgment in this claim, which is based on allegations that prison officials at Southport Correctional Facility “stole” legal mail which claimant was attempting to send to Supreme Court in Chemung County. Issue has been joined, and claimant has now moved for summary judgment in his favor, maintaining that the State has no defense to his claim.

Summary judgment is a drastic remedy that should only be granted when there are no outstanding issues of material fact (Redcross v Aetna Cas. & Sur. Co., 260 AD2d 908, 913-914 [3d Dept 1999], citing to Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). The Court's task is issue finding, not issue determination, and before judgment can be granted it must be clearly ascertained that there are no triable issues of fact outstanding (Matter of Hannah UU, 300 AD2d 942, 943 [3d Dept 2002], citing to Matter of Suffolk County Dept. of Soc. Servs. v James M., 83 NY2d 178, 182 [1994] and Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395 [1957]). The Court's function in deciding a motion for summary judgment is to determine if any issues of fact exist. In order to do this, the Court must examine the proof in a light most favorable to the party opposing the motion (Iwaszkiewicz v Callanan Indus. Inc., 258 AD2d 776 [3d Dept 1999]).

There is no dispute that on May 11, 2006, claimant attempted to send an oversized envelope to Supreme Court for the County of Chemung. According to claimant, the envelope contained a petition by which he intended to commence an Article 78 proceeding. It is also undisputed that the envelope was not in fact mailed to the court but wound up being placed in claimant’s file at the facility. There is a significant dispute, however, about how this came about, a dispute that centers on the events of May 17, 2006.

Claimant provides the following account:
On May 17, 2006 Mail Clerk Renee Gates with another civilian and correction officer came to my cell G-1-31 with 5 pieces of legal mail and one oversized yellow envelope stating [“]Here’s your mail. You can’t say you’re not getting your mail[“] Correction officer stated he can not have these items until they have been opened took all mail and all three persons walked away with the legal mail about 10:30 A.M.
(Claim, ¶ 5.) Defendant presents a very different account of events, beginning with the fact that the mail room determined there was insufficient postage on the envelope and then completed the requisite form to return the correspondence to him (Shoemaker Affirmation, ¶ 7 and Exhibit C).
In compliance with mail procedures, Renee M. Gates, Senior Mail and Supply Clerk at Elmira Correctional Facility attempted to remit the returned mail back to Mr. Gillard on May 17, 2006 at approximately 10:45 am. Ms. Gates was accompanied by Mail Clerk Anthony Cicconi and Corrections Officer R. Bennett. Upon the correctional facility staff’s attempts at returning Mr. Gillard’s mail to him, Mr. Gillard was very uncooperative. Mr. Gillard refused to identify himself to the officers and refused to sign for the delivery of his legal mail.
(Id. ¶ 8.) This version of events is supported by the affidavit of Ms. Gates (id. Exhibit D).

In his reply affidavit, claimant asserts that he did not receive or refuse any item of mail that Ms. Gates had brought to his cell (Gillard Reply Affidavit, ¶ 8). In order to determine if defendant acted wrongfully in failing to send the mail to Supreme Court and placing it in claimant’s file, it is necessary to know what occurred on May 17, 2006. The differing accounts of the events of that day create an unresolved question of material fact and thus defeat summary judgment.

As a general proposition, negligence actions are rarely appropriate for resolution by summary judgment, because they typically involve factual issues of this sort (Davis v Federated Dept. Stores, 227 AD2d 514, 515 [2d Dept 1996]). In addition, credibility issues cannot be resolved on a motion for summary judgment (Goff v Clarke, 302 AD2d 725, 727 [3d Dept 2003]; see also Curanovic v New York Cent. Mut. Fire Ins. Co., 307 AD2d 435 [3d Dept 2003]).

Claimant’s motion is denied.

January 26, 2009
Albany, New York

Judge of the Court of Claims

Papers Considered:

1. Notice of Motion and Supporting Affidavit of Gary Gillard, pro se, with annexed Exhibits;

2. Affirmation in Opposition of James E. Shoemaker, AAG, with annexed Exhibits;

3. Reply Affidavit of Gary Gillard, pro se.

Filed papers: Claim, Answer