Opinion
# 2016-040-098 Claim No. 127725 Motion No. M-89080
11-15-2016
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
Motion to amend Claim denied as no proposed Amended Claim submitted. To the extent Claimant is seeking summary judgment, that motion is denied.
Case information
| UID: | 2016-040-098 |
| 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-89080 |
| 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: | November 15, 2016 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
For the reasons set forth below, the motion of Claimant, Jermaine McLean, appearing pro se, to amend his Claim is denied. To the extent that Claimant may also be seeking summary judgment in his favor, that motion is also 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. 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). Claimant alleges he was wrongfully confined to the Special Housing Unit from June 25, 2015 through September 23, 2015 (id., ¶ 5).
In his Notice of Motion, Claimant asserts that the relief he is seeking is "payment of damages" for wrongful confinement to SHU in the amount of $5,000. In a document attached to his motion papers entitled "Amended Claim and Verified Response," which Claimant asserts is a "verified Response to [D]efendant's Affirmation in Opposition served on July 13, 2016," Claimant asserts that he is "making an application to amend this [C]laim." The State's affirmation to which Claimant is referring was submitted in opposition to Claimant prior Motion for Summary Judgment (McLean v State of New York, UID No. 2016-040-057 [Ct Cl, McCarthy, J., Sept. 19, 2016]).
CPLR 3025(b) provides that a motion to amend a pleading "shall be accompanied by the proposed amended … pleading clearly showing the changes or additions to be made to the pleading." Claimant's motion papers consist of a Notice of Motion to Amend Claim, an Affidavit in Support of Amended Claim, Exhibits and an Affidavit of Service. Claimant has not complied with CPLR 3025(b) as he has not included a proposed amended Claim.
Claimant's motion to amend is denied without prejudice.
In addition, to the extent that Claimant's motion may be considered one for summary judgment, that motion is also denied. Claimant, for the second time, moves for summary judgment. 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, 94 [Sup Ct, Albany County 1965]), affd 26 AD2d 729 [3d Dept 1966]). "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).
The Appellate Division, Third Department stated in Keating v Town of Burke (105 AD3d 1127[2013]):
" '[M]ultiple summary judgment motions in the same action should be discouraged in the absence of a showing of newly discovered evidence or other sufficient cause' " (Matter of Bronsky-Graff Orthodontics, P.C., 37 AD3d 946, 947 [3d Dept 2007], quoting La Freniere v Capital Dist. Transp. Auth., 105 AD2d 517, 518 [3d Dept 1984]; accord Town of Santa Clara v Yanchitis, 90 AD3d 1297, 1298 [3d Dept 2011]).
Here, in Claimant's second Motion for summary judgment, he again relies solely upon his own affidavit to support his motion. Claimant has not made a showing of newly discovered evidence or other sufficient cause. Assuming, arguendo, that this motion was properly made, it would still be denied. The Court 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]). 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.
November 15, 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 to amend his Claim and for summary judgment: Papers Numbered Notice of Motion, "Amended Claim and Verified Response" & Exhibits attached 1 Affirmation in Opposition 2 Filed Papers: Claim, Answer