Opinion
# 2016-040-092 Claim No. 125034 Motion No. M-89188
10-24-2016
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 third motion for summary judgment denied.
Case information
| UID: | 2016-040-092 |
| 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-89188 |
| 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: | October 24, 2016 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
For the reasons set forth below, Claimant's third Motion for summary judgment in his favor 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 (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).
This is the third time Claimant has moved for summary judgment, the prior two motions being for partial summary judgment on the issue of liability only regarding this Claim.
As the Court stated in its decision on Claimant's second motion for summary judgment on this Claim:
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]).
(Oldham v State of New York, UID No. 2016-040-035[Ct Cl, McCarthy, J., May 31, 2016]).
Claimant has neither made a showing that the information submitted in support of this motion was newly discovered after his first motion, nor has he offered any other cause for not submitting the information in his prior motions. The evidence that was not submitted in support of the prior motions for summary judgment must be used to establish facts that were not available to the moving party at the time of the first motion and which could not have been established through alternative evidentiary means (Vinar v Litman, 110 AD3d 867, 868-869 [2d Dept 2013]; see Pavlovich v Zimmet, 50 AD3d 1364, 1365 [3d Dept 2008]). In fact, it has been held that " successive motions for summary judgment should not be made based upon facts or arguments which could have been submitted on the original motion for summary judgment" (Capuano v Platzner Intl. Group, 5 AD3d 620, 621 [2d Dept 2004]). Claimant has made no showing that the information submitted in connection with this motion could not have been submitted in connection with his original motion. Claimant's Motion is, therefore, denied.
October 24, 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 Motion for Summary Judgment, Summary Judgment & Exhibits attached 1 Affirmation in Opposition 2 Papers Filed: Claim, Answer