New York State Court of Claims

New York State Court of Claims

KOEHL v. STATE OF NEW YORK, #2009-038-568, Claim No. 113843, Motion Nos. M-76581, M-76582, CM-76733


Claimant's motion for summary judgment denied. In inmate's claim for broken dentures, claimant's submission on his motion included documentary evidence that gave rise to a triable issue of fact regarding claimant's comparative negligence. Defendant's cross motion to dismiss for failure to state a cause of action denied - claimant's own negligence may go to comparative fault and apportionment of damages, but does not amount to failure to state a claim against the State.

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):
M-76581, M-76582
Cross-motion number(s):
Claimant’s attorney:
Defendant’s attorney:
ANDREW M. CUOMO, Attorney General of the State of New York
By: Paul F. Cagino, Assistant Attorney Generaland Belinda Wagner, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
September 23, 2009

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant, an individual incarcerated in a State correctional facility, filed this claim seeking compensation for his broken upper denture. Claimant has filed two motions, the first of which seeks summary judgment on his claim (M-76582) and the second of which seeks to compel the production of documents (M-76581).[1] Defendant opposes both motions, and cross-moves against the motion for summary judgment to dismiss the claim for failure to state a cause of action. Claimant’s Motion for Summary Judgment

It is well established that a movant for summary judgment must demonstrate, by proof in admissible form, the right to judgment as a matter of law (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1067 [1979]). “Summary judgment is a drastic remedy that deprives a litigant of his or her day in court, and it ‘should only be employed when there is no doubt as to the absence of triable issues’” (Kolivas v Kirchoff, 14 AD3d 493 [2d Dept 2005], quoting Andre v Pomeroy, 35 NY2d 361, 364 [1974]). Issue-finding, as opposed to issue-determination, is the role of the Court in determining a summary judgment motion (Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957]), and when the movant’s submission itself demonstrates that the movant/ claimant may have been comparatively negligent, denial of the motion for summary judgment is proper (see Thoma v Ronai, 82 NY2d 736, 737 [1993]).

The instant claim seeks damages based upon defendant’s violation of its own directive. Specifically, claimant contends that his denture was damaged because defendant did not provide him with denture adhesive within 24 hours of his arrival at Upstate Correctional Facility (CF), as required by Department of Correctional Services (DOCS) Directive No. 4933, which provides that inmates must be permitted personally owned denture adhesive within 24 hours after admission to a special housing unit (see Koehl Affidavit, Exhibit 5).

Here, claimant’s motion, supported by his sworn affidavit and attached exhibits, demonstrates the following. On April 8, 2003, claimant paid $350.00 for a set of upper and lower dentures, which were completed in January of 2004 (see Koehl Affidavit, ¶ 6; Exhibit 2). On March 23, 2007, claimant’s personal property, including two tubes of denture adhesive, was confiscated upon his arrival at Upstate CF (see Koehl Affidavit, ¶ 7). On March 26, 2007, claimant’s personal property was inventoried, and his request for access to his denture adhesive was denied (see Koehl Affidavit, ¶ 8; Exhibit 6). On April 4, 2007, claimant wrote several letters to various DOCS personnel (see Koehl Affidavit, Exhibit 9) and also filed a grievance in which he requested immediate access to his denture adhesive (see Koehl Affidavit; Exhibit 8). Claimant’s facility medical records indicate that on March 30, 2007, he had complained to medical staff that he lacked denture adhesive and that his dentures were “moving/falling” (see Koehl Affidavit, Exhibit 7). On April 4, 2007, claimant’s top denture fell out of his mouth and broke (see Koehl Affidavit, ¶ 12; Exhibit 11). Claimant was given denture adhesive from his personal property on April 5, 2007 (see Koehl Affidavit, ¶ 11; Exhibits 6, 10), nearly two weeks after his arrival at Upstate CF. A memo dated May 31, 2007 from “R. Rakoce Sgt.” to the Inmate Grievance Resolution Committee (IGRC), which generally describes the investigation that was undertaken with regard to claimant’s request for denture adhesive, confirms that claimant did not receive the adhesive in a timely manner (see Koehl Affidavit, Exhibit 8). Claimant filed an institutional claim seeking compensation for his damaged upper dental plate in the amount of $175.00 (see Koehl Affidavit, Exhibit 11), which was denied on the ground that “claimant is substantially responsible for the loss or damage” (id.). The denial was affirmed on administrative appeal because the “[d]amage [was the] result of inmate’s actions, not facility’s” (id.).

While the violation by DOCS of its own directive does not necessarily give rise to an implied cause of action for money damages against the State (see Wilson v State of New York, UID # 2005-019-568, Claim No. 110497, Motion Nos. M-70551, CM-70606, Lebous, J. [Sept. 13, 2005]), violations of directives may be evidence of negligence (see Arias v State of New York, 195 Misc 2d 64, 71-73 [Ct Cl 2003]). Here, claimant has demonstrated that DOCS’ own directive required defendant to give claimant access to his denture adhesive within 24 hours of his admission to the SHU and that he was not given such access until far beyond that time frame. He has submitted evidence demonstrating that he complained of problems with his dentures due to the lack of adhesive, and his sworn affidavit states that the denture fell from his mouth and broke due to the lack of adhesive. In sum, claimant has demonstrated by evidence in admissible form that defendant owed him a duty, that defendant breached that duty, and that defendant’s breach of duty caused claimant to suffer damages.

Nevertheless, summary judgment on liability cannot be awarded to claimant because his own submission raises a question of fact as to his comparative negligence. In particular, claimant submitted an institutional claim form seeking compensation for the broken denture which was disapproved by DOCS on the grounds that the loss was the result of claimant’s actions (see Koehl Affidavit, Exhibit 11). Thus, inasmuch as claimant’s own submission gives rise to a triable issue of material fact as to claimant’s culpability for his injury, it would be inappropriate to grant claimant’s motion for summary judgment (see Thoma v Ronai, supra; Dasher v Wegmans Food Markets, Inc., 305 AD2d 1019 [4th Dept 2003]; Millus v Milford, 289 AD2d 543 [2d Dept 2001]; King v Washburn, 273 AD2d 725, 726 [3d Dept 2000]).

Defendant’s Cross Motion to Dismiss

Defendant cross-moves for dismissal of the claim pursuant to CPLR 3211(a)(7), asserting that the claim fails to state a cause of action against the State because “[i]f claimant’s dentures were loose and moving around in his mouth, then he should not have been wearing them [and thus] [a]ny damage to claimant’s dentures were caused by claimant, not by any action of the defendant” (Cagino Affirmation, ¶¶ 17, 18). On a motion to dismiss for failure to state a cause of action:

claimant's claim is liberally construed and all facts asserted therein, as well as its submissions in opposition to defendant's motion, are accepted as true (see CPLR 3026; 511 W. 232nd Owners Corp. v Jennifer Realty Co., 98 NY2d 144, 152 [2002]; see also Nonnon v City of New York, 9 NY3d 825, 827 [2007]; State of New York v Shaw Contract Flooring Servs., Inc., 49 AD3d 1078, 1079 [2008] ). Where, as here, the motion is premised upon claimant's failure to state a claim (see CPLR 3211[a][7] ) . . . the dispositive inquiry is whether it has a cause of action and not whether one has been stated, i.e., “whether the facts as alleged fit within any cognizable legal theory” (Leon v Martinez, 84 NY2d 83, 87-88 [1994]; accord Nonnon v City of New York, 9 NY3d at 827).

(IMS Engineers-Architects, P.C. v State of New York, 51 AD3d 1355, 1356 [3d Dept 2008], lv denied 11 NY3d 706 [2008]). The facts as set forth in the instant claim allege that defendant had a duty to provide claimant with denture adhesive, that defendant did not do so in a timely fashion, and that claimant suffered injury as a result. Clearly, the claim withstands defendant’s motion to dismiss pursuant to CPLR 3211(a)(7). As discussed above, the possibility that claimant’s own conduct caused or contributed to the breaking of his denture presents a triable issue of fact as to claimant’s possible comparative negligence, but the mere assertion by counsel that the damages were sustained due to claimant’s own fault does not demonstrate that the claim fails to state a cause of action.

Claimant’s Motion to Compel Disclosure

Claimant moves pursuant to CPLR 3124 to compel defendant to comply with a document request that claimant made on August 9, 2007. Upon receipt of claimant’s motion to compel, on September 21, 2007, defendant served a response to claimant’s document request (see Wagner Affirmation, ¶ 3 and Exhibit C), and defendant contends that it has complied with claimant’s document request. Inasmuch as claimant did not reply that defendant’s responses were inadequate or incomplete, claimant’s motion to compel will be denied as moot.

Accordingly, it is

ORDERED, that claimant’s Motion No. M-76582 is DENIED, and it is further

ORDERED, that defendant’s Cross Motion No. CM-76733 is DENIED, and it is further

ORDERED, that claimant’s Motion No. M-76581 is DENIED as moot.

September 23, 2009
Albany, New York

Judge of the Court of Claims

Papers considered

(1) Claim No. 113843, filed June 14, 2007;

(2) Notice of Motion (M-76581), filed September 19, 2007;

(3) Affidavit of Edward Koehl in Support of Motion to Compel Disclosure, sworn to

September 13, 2007, with exhibit;

(4) Affirmation in Opposition of Belinda A. Wagner, AAG, dated October 2, 2007, with

Exhibits A-C;

(5) Notice of Motion (M-76582), dated April 16, 2009;

(6) Affidavit in Support of Edward Koehl, dated and verified April 16, 2009, with Exhibits 1-11;

(7) “Declaration” of Edward Koehl, sworn to April 16, 2009;

(8) Notice of Cross-Motion (CM-76733), dated May 21, 2009;

(9) Affirmation of Paul F. Cagino, AAG, in Opposition to Motion for Summary Judgment and in

Support of Cross-Motion to Dismiss, dated May 21, 2009, with Exhibits A-G;

(10) Correspondence of Edward Koehl, dated May 26, 2009, with exhibit;

(11) Reply “Affidavit” of Edward Koehl, dated May 28, 2009;

(12) Correspondence of Edward Koehl, dated June 8, 2009.

[1]. Claimant’s motion to compel (M-76581) was originally filed in September 2007, and was opposed by papers filed in October 2007. Consideration of that motion was held in abeyance pending resolution of issues involving payment of the filing fee.