New York State Court of Claims

New York State Court of Claims
PHILLIP v. THE STATE OF NEW YORK, # 2009-033-363, Claim No. 116766, Motion No. M-76985, Cross-Motion No. CM-77100


Case information

UID: 2009-033-363
Claimant(s): KURT PHILLIP
Claimant short name: PHILLIP
Footnote (claimant name) :
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 116766
Motion number(s): M-76985
Cross-motion number(s): CM-77100
Judge: James J. Lack
Claimant's attorney: Kurt Phillip, Pro Se
Defendant's attorney: Andrew M. Cuomo, New York State Attorney General
By: Belinda A. Wagner, Assistant Attorney General
Third-party defendant's attorney:
Signature date: December 16, 2009
City: Hauppauge
Official citation:
Appellate results:
See also (multicaptioned case)


This is a claim by Kurt Phillip (hereinafter "claimant") an inmate at Eastern Correctional Facility, Napanoch, New York. The claim is for alleged injuries based upon defendant's denial of claimant's request to attend his father's funeral.

According to claimant, his adoptive father passed away while claimant was incarcerated. Claimant made an application to attend the funeral. Claimant alleges he was denied a pass because the prison's chaplain recorded the relationship incorrectly on the application. The decedent was listed as claimant's "stepfather". Claimant alleges it was improper to have his application denied.

Claimant moves this Court for summary judgment on the issue of liability(1) .

Defendant opposes claimant's motion and cross-moves to dismiss the claim(2) . Defendant argues the Court lacks subject matter jurisdiction. Defendant posits claimant's remedy was to bring a CPLR Art. 78 proceeding.

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). The Court's function is to determine if an issue exists. In doing so, the Court must examine the proof in a light most favorable to the party opposing the motion. Summary judgment may only be granted if movant provides evidentiary proof in admissible form to demonstrate that there are no questions of fact (Winegrad v New York Univ. Med. Center, 64 NY2d 851; Wanger v Zeh, 45 Misc2d 93, aff'd 26 AD2d 729). Once the movant has demonstrated a prima facie entitlement to summary judgment as a matter of law, the burden shifts to the opposing party to submit evidentiary proof in admissible form sufficient to create an issue of fact or demonstrate an acceptable excuse for his failure to submit such proof (Alvarez v Prospect Hosp., 68 NY2d 320). Mere conclusions, speculation or expressions of hope are insufficient to defeat the motion (Amatulli v Delhi Constr. Corp., 77 NY2d 525).

Claimant has failed to meet his burden of proof to demonstrate his entitlement to summary judgment. Claimant has failed to submit any documentary evidence in admissible form to support his position.

The Court turns its attention to defendant's motion. In City of New York v State of New York, 46 AD3d 1168, 1169, the court stated:

Two inquiries must be made to determine if the Court of Claims has subject matter jurisdiction. As that court has "no jurisdiction to grant strictly equitable relief" (Psaty v Duryea, 306 NY 413, 416 [1954]), but may grant incidental equitable relief so long as the primary claim seeks to recover money damages in appropriation, contract or tort cases (see Ozanam Hall of Queens Nursing Home v State of New York, 241 AD2d 670, 671 [1997]), "the threshold question is '[w]hether the essential nature of the claim is to recover money, or whether the monetary relief is incidental to the primary claim' " (Madura v State of New York, 12 AD3d 759, 760 [2004], lv denied 4 NY3d 704 [2005], quoting Matter of Gross v Perales, 72 NY2d 231, 236 [1988]). The second inquiry, regardless of how a claimant categorizes a claim, is whether the claim would require review of an administrative agency's determination--which the Court of Claims has no subject matter jurisdiction to entertain (see Hoffman v State of New York, 42 AD3d 641, 642 [2007]), as review of such determinations are properly brought only in Supreme Court in a CPLR article 78 proceeding (see Matter of Scherbyn v Wayne-Finger Lakes Bd. of Coop. Educ. Servs., 77 NY2d 753, 757 [1991]).

Emphasis added.

In order to award claimant damages, this Court must review the decision made by the Department of Correctional Services as to claimant's eligibility to attend the funeral. Claimant indicates defendant misapplied Correction Law 113 in denying claimant's request to attend his father's funeral. To determine this claim, the Court must gather the facts and evidence and then decide whether or not defendant's agency came to a wrong conclusion. As previously stated, the appropriate mechanism to review defendant's decision would have been an Article 78 proceeding in Supreme Court.

Based upon the foregoing, claimant's motion for summary judgment is denied. Defendant's cross-motion to dismiss is granted for lack of subject matter jurisdiction. The Clerk of the Court is directed to close the file.

December 16, 2009

Hauppauge, New York

James J. Lack

Judge of the Court of Claims

1. The following papers were read and considered on claimant's motion: Notice of Motion for Summary Judgment dated July 16, 2009 and filed July 22, 2009; Affidavit of Kurt Phillip sworn to July 16, 2009; Statement of Material Fact of Kurt Phillip sworn to July 16, 2009 and filed July 22, 2009; Appendix of Exhibits filed on July 22, 2009; Affidavit of Maylive Philip sworn to July 31, 2009 and filed August 12, 2009; Letter with annexed Appendix A12 of Kurt Phillip received in Chambers on September 2, 2009.

2. The following papers have been read and considered on defendant's motion: Notice of Cross-Motion dated August 18, 2009 and filed August 18, 2009; Affirmation in Opposition to Claimant's Motion and in Support of Defendant's Cross-Motion to Dismiss of Belinda A. Wagner, Esq. with annexed Exhibits A-B dated August 18, 2009 and filed August 18, 2009; Reply and Answer of Kurt Phillip sworn to August 25, 2009 and filed August 28, 2009.