Opinion
# 2016-040-057 Claim No. 127725 Motion No. M-88808
09-19-2016
JERMAINE McLEAN v. THE STATE OF NEW YORK
Jermaine McLean, Pro Se ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Thomas R. Monjeau, Esq., AAG
Synopsis
Case information
| UID: | 2016-040-057 |
| Claimant(s): | JERMAINE McLEAN |
| Claimant short name: | McLEAN |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | Caption amended to reflect the State of New York as the proper defendant. |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 127725 |
| Motion number(s): | M-88808 |
| Cross-motion number(s): | |
| Judge: | CHRISTOPHER J. McCARTHY |
| Claimant's attorney: | Jermaine McLean, 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: | September 19, 2016 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
For the reasons set forth below, Claimant's Motion for summary judgment in his favor is denied.
This pro se Claim, which was filed with the Clerk of the Court on March 30, 2016, alleges a cause of action for wrongful confinement, which arose at Greene Correctional Facility (hereinafter, "Greene"). Claimant alleges that, on June 25, 2015, he was issued a "fabricated" misbehavior report by a correction officer (Claim, ¶ 2). It appears that Claimant was found guilty of the charges at a disciplinary hearing, as Claimant asserts that, upon administrative appeal filed on August 28, 2015, the penalty imposed was modified (id. and Ex. A attached). He then commenced a CPLR Article 78 Proceeding in Supreme Court, Greene County on October 1, 2016 (id. and Ex. B attached). Claimant asserts that, while the Article 78 matter was pending, he was informed that the disciplinary determination was administratively reversed on December 16, 2015 (id. and Ex. C attached).
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 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 a 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 asserts in his Verified Response and Request for Summary Judgment that the State did not follow the rules and regulations by not providing the four witnesses he wanted to testify (Verified Response & Request for Summary Judgment, ¶¶ 3, 5, 6). Claimant has failed to submit any proof as to the reason the hearing officer's determination was reversed. Thus, he 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.
September 19, 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 Notice of Motion, Verified Response and Request for Summary Judgment & Exhibits attached 1 Affirmation in Opposition 2 Filed Papers: Claim, Answer