Opinion
# 2016-040-019 Claim No. 126893 Motion No. M-87811
03-02-2016
JOSE LALLAVE, #11R3996 v. THE STATE OF NEW YORK
Jose Lallave, Pro Se ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Thomas R. Monjeau, Esq., AAG
Synopsis
Pro se Claimant's motion for summary judgment denied.
Case information
| UID: | 2016-040-019 |
| Claimant(s): | JOSE LALLAVE, #11R3996 |
| Claimant short name: | LALLAVE |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 126893 |
| Motion number(s): | M-87811 |
| Cross-motion number(s): | |
| Judge: | CHRISTOPHER J. McCARTHY |
| Claimant's attorney: | Jose Lallave, Pro Se |
| Defendant's attorney: | ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Thomas R. Monjeau, Esq., AAG |
| Third-party defendant's attorney: | |
| Signature date: | March 2, 2016 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
For the reasons set forth below, Claimant's motion for partial summary judgment in his favor is denied.
This pro se Claim, which was filed in the office of the Clerk of the Court on October 19, 2015 and alleges that Claimant was wrongfully confined to the Special Housing Unit at Cape Vincent Correctional Facility located in Cape Vincent, New York, following a Tier III hearing concerning events that occurred at Franklin Correctional Facility, located in Malone, New York. Claimant asserts that he filed an Article 78 Petition challenging the determination of the hearing officer and that, in a decision dated September 30, 2015, his Petition to annul the determination was granted (Claim, ¶ 4.i.).
The Court notes that the Clerk's office took a document from Claimant entitled "Verified Reply to Defendant's Motion to Dismiss" as a motion for summary judgment based upon Claimant's "wherefore clause" where he asks for summary judgment in his favor.
The Court has reviewed its records and notes that Defendant has not made a motion to dismiss this Claim.
Summary judgment is a drastic remedy to be granted sparingly and only where no material issue of fact is demonstrated in the papers related to the motion (see Crowley's Milk Co. v Klein, 24 AD2d 920 [3d Dept 1965]; Wanger v Zeh, 45 Misc 2d 93 [Sup Ct, Albany County 1965], affd 26 AD2d 729 [3d Dept 1966]). CPLR 3212(b) requires that a motion for summary judgment be supported by a copy of the pleadings (Capelin Assoc. v Globe Mfg. Corp., 34 NY2d 338 [1974]). In support of his motion, Claimant did not submit a copy of the Claim or the Verified Answer. The failure to include all the pleadings in support of a motion for summary judgment requires that the motion be denied, regardless of the merits of the motion (Senor v State of New York, 23 AD3d 851 [3d Dept 2005]; Bonded Concrete, Inc. v Town of Saugerties, 3 AD3d 729 [3d Dept 2004], lv dismissed 2 NY3d 793 [2004]; Deer Park Assocs. v Robbins Store, 243 AD2d 443 [2d Dept 1997];CPLR 3212[b]).
CPLR 3212(b) also requires that the motion be supported by "available proof." "The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case" (Winegrad v New York Univ. Med. Center, 64 NY2d 851, 853 [1985]; see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957]). "Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers" (Alvarez v Prospect Hosp., supra at 324; see Winegrad v New York Univ. Med. Center, supra at 853).
However, assuming, arguendo, that Claimant had supported his motion by including a copy of all the pleadings, the Court further finds that Claimant failed to make the required prima facie showing of entitlement to judgment as a matter of law. In Arteaga v State of New York (72 NY2d 212 [1988]), the Court of Appeals held that the State had absolute immunity from liability in the area of prison discipline when its employees act under the authority of and in full compliance with the statutes and regulations, and their actions constitute discretionary conduct of a quasi-judicial nature. When a prison disciplinary hearing is not conducted in accordance with governing rules and regulations, the cloak of absolute immunity is removed and liability may result (Mabry v State of New York, UID No. 2008-029-064 [Ct Cl, Mignano, J., Dec. 22, 2008]; Brown v State of New York, UID No. 2008-010-038 [Ct Cl, Ruderman, J., Oct. 6, 2008]; Diaz v State of New York, UID No. 2006-036-008 [ Ct Cl, Schweitzer, J., June 20, 2006]; Mabry v State of New York, UID No. 2001-013-514 [Ct Cl, Patti, J., Dec. 31, 2001]). Here, Claimant has failed to establish that Defendant violated the rules and regulations governing the disciplinary process. Claimant has failed to establish that he is entitled to judgment as a matter of law.
Therefore, based upon the foregoing, Claimant's motion for summary judgment in his favor is denied.
March 2, 2016
Albany, New York
CHRISTOPHER J. McCARTHY
Judge of the Court of Claims The following papers were read and considered by the Court on Claimant's motion for summary judgment: Papers Numbered Verified Reply to Defendant's Motion to Dismiss 1 Affirmation in Opposition 2 Verified Reply to Defendant's Affirmation 3 Filed Papers: Claim, Verified Answer