Opinion
# 2016-040-035 Claim No. 125034 Motion No. M-88016
05-31-2016
DARREL OLDHAM v. STATE OF NEW YORK
Darrel Oldham, Pro Se ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Paul F. Cagino, Esq., AAG
Synopsis
Pro se Claimant's second motion for summary judgment denied, as is motion for poor person status and motion for assignment of counsel.
Case information
| UID: | 2016-040-035 |
| Claimant(s): | DARREL OLDHAM |
| Claimant short name: | OLDHAM |
| Footnote (claimant name) : | |
| Defendant(s): | STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 125034 |
| Motion number(s): | M-88016 |
| Cross-motion number(s): | |
| Judge: | CHRISTOPHER J. McCARTHY |
| Claimant's attorney: | Darrel Oldham, Pro Se |
|---|---|
| Defendant's attorney: | ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Paul F. Cagino, Esq., AAG |
| Third-party defendant's attorney: | |
| Signature date: | May 31, 2016 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
For the reasons set forth below, Claimant's second Motion for partial summary judgment in his favor on the issue of liability is denied. In addition, Claimant's Motion seeking poor person status and assignment of counsel pursuant to CPLR §§ 1101 and 1102(a) is denied.
This pro se Claim, which was filed with the Clerk of the Court on September 25, 2014, alleges a cause of action for wrongful confinement, which arose at Franklin Correctional Facility, located in Malone, New York (hereinafter, "Franklin").
The Claim asserts that Claimant was wrongfully confined for a period of 22 days. Claimant alleges that, on May 27, 2014, he was issued a misbehavior report charging him with violating three specific prison rules on May 25, 2014 that was signed by a correction officer. A disciplinary hearing was commenced on May 29, 2014, Claimant requested that a witness appear and testify, and the Hearing Officer denied his request without a reason being offered for the refusal (Claim, ¶ 5). Claimant was found guilty of the charges at a Tier II disciplinary hearing (id., ¶ 8). Claimant asserts that he was denied due process at the Tier II hearing because of the failure to present the witness or explain why the witness was refused (id., ¶ 7). Claimant filed an administrative appeal and, on June 14, 2014, was advised that the hearing officer's determination had been modified by reducing the length of the penalties imposed (id., ¶ 10). Claimant asserts that he filed an Article 78 petition on July 8, 2014 challenging the determination (id., ¶ 11) and that, on September 16, 2014, he received a memorandum from the Franklin superintendent informing him that the May 25, 2014 incident was expunged and removed from his disciplinary file (id., ¶ 13).
Claimant, for the second time, moves for partial summary judgment on the issue of liability. 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).
As the Court stated above, this is Claimant's second motion for summary judgment. 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]). Here, Claimant asserts that the State did not follow the rules and regulations by not providing the witness he wanted to testify or providing the reason he did not testify. Claimant has failed to submit any proof as to the reason the hearing officer's determination was expunged. 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.
The Court now turns to that portion of Claimant's Motion seeking poor person status and assignment of counsel pursuant to CPLR §§ 1101 and 1102(a). Attached to the Claim was an Affidavit in Support of an Application pursuant to CPLR § 1101(f) to reduce the amount of the Court of Claims filing fee. By Order filed October 7, 2014, Acting Presiding Judge Richard E. Sise reduced Claimant's filing fee from $50 to $25 pursuant to CPLR § 1101(f). Claimant now seeks leave to proceed as a poor person and for assignment of counsel.
Pursuant to CPLR § 1101(c), if an action has been commenced, notice of a poor person motion shall be served on all parties and shall also be given to the county attorney in the county in which the action is triable. Notice to the county attorney is a significant requirement because certain costs may be a county charge (see CPLR 1102; Hines v State of New York, UID No. 2005-028-534 [Ct Cl, Sise, P.J., June 21, 2005]; Jabbar v State of New York, UID No. 2006-044-504 [Ct Cl, Schaewe, J., Oct. 20, 2006]). The action is triable in the county where the claim accrued, in this case, Franklin County, since that is where the alleged acts occurred. Claimant has failed to establish that he served a copy of this motion upon the Franklin County Attorney. Thus, pursuant to CPLR § 1101(c), his motion is defective and must be denied on those grounds (Sebastiano v State of New York, 92 AD2d 966 [3d Dept 1983]; Harris v State of New York, 100 Misc 2d 1015, 1016 [Ct Cl 1979]).
Further, even assuming compliance with CPLR § 1101(c), the motion would still be denied. The assignment of counsel in civil matters is discretionary and is generally denied except in cases involving loss of liberty or grievous forfeiture (Matter of Smiley, 36 NY2d 433 [1975]; Wills v City of Troy, 258 AD2d 849 [3d Dept 1999], lv dismissed 93 NY2d 1000 [1999]; Brabham v State of New York, 13 Misc 3d 1222[A] [Ct Cl 2006]; Hines v State of New York, supra; Jabbar v State of New York, supra). Here, Claimant has failed to establish that the Claim is of sufficient complexity or that it involves such fundamental rights that the Court would be justified in exercising its discretion to appoint an attorney to appear without compensation (see Matter of Smiley, supra; Wills v City of Troy, supra).
Therefore, based upon the foregoing, Claimant's request to be granted poor person status and assignment of counsel is denied.
May 31, 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 seeking summary judgment and poor person status and assignment of counsel pursuant to CPLR §§ 1101 and 1102(a): Papers Numbered Notice of Motion, Affidavit in Support of Summary Judgment Motion, Affidavit in Support of Poor Person Motion and Exhibits attached 1 Filed Papers: Claim, Answer