Opinion
# 2014-040-055 Claim No. 124487 Motion No. M-85551
12-12-2014
KEITH WATERS, 06-A-2999 v. THE STATE OF NEW YORK
Keith Waters, Pro Se ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Michael C. Rizzo, Esq., AAG
Synopsis
Claimant's summary judgment motion denied: (1) as he failed to include all pleadings with motion and (2) he failed to establish entitlement to judgment as a matter of law.
Case information
| UID: | 2014-040-055 |
| Claimant(s): | KEITH WATERS, 06-A-2999 |
| Claimant short name: | WATERS |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 124487 |
| Motion number(s): | M-85551 |
| Cross-motion number(s): | |
| Judge: | CHRISTOPHER J. McCARTHY |
| Claimant's attorney: | Keith Waters, Pro Se |
|---|---|
| Defendant's attorney: | ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Michael C. Rizzo, Esq., AAG |
| Third-party defendant's attorney: | |
| Signature date: | December 12, 2014 |
| 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 pursuant to CPLR 3212 is denied.
The Claim, which was filed in the office of the Clerk of the Court on June 6, 2014, alleges that, on January 13, 2013, Claimant received a Tier III Misbehavior Report charging him with violating two institutional rules. At that time, he was incarcerated at Greene Correctional Facility located in Coxsackie, New York (hereinafter, "Greene"). A Tier III Hearing was commenced on January 22, 2013 and Claimant objected on the grounds that the Misbehavior Report was procedurally improper. He was found guilty of one of the two charges on March 21, 2013 and, inter alia, received 90 days in the Special Housing Unit (hereinafter, "SHU"). Claimant was released from SHU on or about May 31, 2013, after 71 days (Claim, ¶ 8). On October 2, 2013, Supreme Court, Albany County, annulled and ordered expunged all references to the January 22, 2013 disciplinary hearing from Claimant's institutional record in an Article 78 proceeding initiated by him (id., ¶ 9).
As a preliminary matter, Claimant asserts in his Reply affidavit that Defendant's opposition papers were filed "one day past the September 8, 2014 return date set by the [C]ourt" and the papers should not be considered (Reply affidavit, ¶ 4). However, the return date of the motion as established by the Court was October 8, 2014, not September 8, and , thus, Defendant's opposition papers are timely and will be considered by the Court.
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 Verified Answer. The only pleading he submitted was his Claim. 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. In this case, however, the Supreme Court in its decision and order on the Article 78 proceeding found that the misbehavior report issued to Claimant failed to properly set forth the date and time of the offense and thus failed to comply with 7 NYCRR § 251-3.1 (a) (see Ex. C attached to motion papers). 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]).
Nevertheless, removal of the absolute immunity articulated in Arteaga is not, per se, sufficient to establish liability. Claimant must still establish the merits of his claim; i.e., "that if [D]efendant had properly complied with its rules and regulations, the outcome of the hearing would have been different and [C]laimant would not have been wrongfully confined or suffered damages" (McKinney v State of New York, UID No. 2008-044-589 [Ct Cl, Schaewe, J., Nov. 20, 2008]; Mabry v State of New York, supra; see also Brown v State of New York, supra).
Notwithstanding the loss of Defendant's absolute immunity defense, Claimant has not established that, if Defendant had complied with the regulation at issue, the outcome of the disciplinary hearing would have been different. Without such evidence, Claimant has failed to meet his burden on this motion (see Winegrad v New York Univ. Med. Center, supra; Alvarez v Prospect Hosp., supra). 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.
December 12, 2014
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, Affidavit
& Exhibits attached 1
Affirmation in Opposition
& Exhibit attached 2
Claimant's Reply 3
Filed Papers: Claim, Answer