Opinion
# 2016-038-559 Claim No. 123470 Motion No. M-88545 Cross-Motion No. CM-88664
09-22-2016
DAMIEN ADAMS v. THE STATE OF NEW YORK
DAMIEN ADAMS, Pro se ERIC T. SCHNEIDERMAN, Attorney General of the State of New York By: Michael T. Krenrich, Assistant Attorney General
Synopsis
Claimant's motion for summary judgment denied. Insufficient prima facie showing of lack of privilege on claim for wrongful confinement in SHU. Defendant's cross motion to dismiss based upon improper manner of service denied in the absence of exhibit containing envelope in which the claim was mailed to the AG and without an affidavit of one with personal knowledge of the alleged improper manner of service of the claim.
Case information
| UID: | 2016-038-559 |
| Claimant(s): | DAMIEN ADAMS |
| Claimant short name: | ADAMS |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 123470 |
| Motion number(s): | M-88545 |
| Cross-motion number(s): | CM-88664 |
| Judge: | W. BROOKS DeBOW |
| Claimant's attorney: | DAMIEN ADAMS, Pro se |
| Defendant's attorney: | ERIC T. SCHNEIDERMAN, Attorney General of the State of New York By: Michael T. Krenrich, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | September 22, 2016 |
| City: | Saratoga Springs |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant, an individual incarcerated in a State correctional facility, filed this claim in which he alleges that he was unlawfully confined in a Special Housing Unit (SHU) at Upstate Correctional Facility (CF) for 90 days after having been found guilty of disciplinary charges that were subsequently overturned. Claimant moves for summary judgment on the issue of liability. Defendant cross-moves to dismiss the claim for lack of jurisdiction due to claimant's failure to properly serve the claim. Claimant opposes defendant's cross motion.
Defendant's cross motion to dismiss the claim will be addressed first, as it may be dispositive. Court of Claims Act § 11 (a) (i) requires that if a claim is served upon the Attorney General by mail, service must be accomplished by certified mail, return receipt requested (CMRRR). The service requirements of the Court of Claims Act must be strictly construed (see Finnerty v New York State Thruway Auth., 75 NY2d 721, 722-723 [1989]), and the failure to effect service on the Attorney General by CMRRR is a jurisdictional defect that requires dismissal of the claim (see Turley v State of New York, 279 AD2d 819 [3d Dept 2001], lv denied 96 NY2d 708 [2001]; Philippe v State of New York, 248 AD2d 827 [3d Dept 1998]; Estrella v State of New York, UID No. 2008-018-634 [Ct Cl, Fitzpatrick, J., Sept. 3, 2008]; Desenclos v State of New York, UID No. 2007-042-514 [Ct Cl, Siegel, J., July 23, 2007]).
Defendant asserts that the claim was served on the Attorney General not by CMRRR, but by regular first class mail, and the cross motion purports to be supported by "[a] copy of the claim and the envelope in which it was received is attached" (Krenrich Affirmation, ¶ 3; see Exhibit A). However, Exhibit A does not include a copy of the envelope, nor does a copy of the envelope appear anywhere else in defendant's submission on the cross motion. Defendant's counsel does not claim personal knowledge of the manner of service, and an affidavit of a person claiming such personal knowledge is not submitted in support of the cross motion. Thus, defendant's cross motion is devoid of proof that the claim was not served by CMRRR, and it must therefore be denied.
Turning to claimant's motion for summary judgment, defendant opposes the motion on the ground that he has not complied with CPLR 3212 (b) insofar as his motion is not supported by a copy of the pleadings (see Greene v Wood, 6 AD3d 976 [3d Dept 2004]; Senor v State of New York, 23 AD3d 851, 852 [3d Dept 2005]). Such an omission generally requires summary denial of the motion without prejudice to renewal of the motion (see Wider v Heller, 24 AD3d 433, 434 [2d Dept 2005]; Welton v Drobnicki, 298 AD2d 757 [3d Dept 2002]; see also Senor v State of New York, 23 AD3d 851, 852 [3d Dept 2005]). However, the omission of a pleading in support of a motion for summary judgment may be overlooked where the record is "sufficiently complete" (see Stiber v Cotrone, 153 AD2d 1006, 1007 [3d Dept 1989] lv denied 75 NY2d 703 [1990]; see also Welch v Hauck, 18 AD3d 1096, 1098 [3d Dept 2005] lv denied 5 NY3d 708 [2005]; Greene v Wood, 6 AD3d 976, 977 [3d Dept 2004]). Defendant has submitted copies of the claim and the answer in support of its cross motion seeking dismissal, and thus, the record is sufficiently complete for consideration of claimant's motion for summary judgment.
Turning to the merits of claimant's motion, the party moving for summary judgment bears the initial burden of establishing his right to judgment as a matter of law (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1067 [1979]). It is well established and recently restated that:
"[o]n a motion for summary judgment, facts must be viewed 'in the light most favorable to the non-moving party' (Ortiz v Varsity Holdings, LLC, 18 NY3d 335, 339 [2011]). Summary judgment is a drastic remedy, to be granted only where the moving party has 'tender[ed] sufficient evidence to demonstrate the absence of any material issues of fact' (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]) and then only if, upon the moving party's meeting of this burden, the non-moving party fails 'to establish the existence of material issues of fact which require a trial of the action' (id.)"
(Vega v Restani Constr. Corp., 18 NY3d 499, 503 [2012]). A movant for summary judgment on a cause of action for wrongful confinement must establish prima facie the elements of the cause of action: that there was "(1) an intentional confinement (2) of which plaintiff was conscious and (3) to which plaintiff did not consent, and (4) that was not otherwise privileged" (Guntlow v Barbera, 76 AD3d 760, 762 [3d Dept 2010], appeal dismissed 15 NY3d 906 [2010], citing Martinez v City of Schenectady, 97 NY2d 78, 85 [2001]; Broughton v State of New York, 37 NY2d 451, 456-457 [1975], cert denied sub nom. Schanbarger v Kellogg 423 US 929 [1975]; see also Nazario v State of New York, 75 AD3d 715, 718 [3d Dept 2010], lv denied 15 NY3d 712 [2010]).
Claimant submits a sworn document in which he asserts that he was confined in a SHU at Upstate CF for 90 days, that he was aware of the alleged illegal confinement, and that he objected to it (see Motion for Summary Judgment, sworn to 5/4/16, ¶¶ 1-2). These attestations establish prima facie the first three elements of a cause of action for wrongful confinement. Claimant further but summarily asserts that defendant "wasn't privileged to illegally confine me" (id., ¶ 3), but that element of the cause of action cannot be established absent further analysis of the legal issue of privilege.
Confinement in a SHU may be privileged if it was accomplished in accordance with the regulations of the Department of Corrections and Community Supervision (DOCCS) (see Lee v State of New York, 124 AD2d 305, 307 [3d Dept 1986]; Gittens v State of New York, 132 Misc 2d 399, 402 [Ct Cl 1986]). If defendant's "employees act under the authority of and in full compliance with the governing statutes and regulations (Correction Law §§ 112, 137; 7 NYCRR parts 250-254), their actions constitute discretionary conduct of a quasi-judicial nature for which the State has absolute immunity" (Arteaga v State of New York, 72 NY2d 212, 214 [1988]). Such immunity does not attach, however, where there has been a violation of an inmate's right to due process (see id., at 221).
Claimant asserts that the confinement was not privileged because defendant "failed to provide [him] a fair and impartial hearing," that the hearing was "illegal," and that defendant failed to provide claimant with the hearing transcript that he requested in discovery on this claim, which, he contends, would demonstrate that his rights were violated under DOCCS regulations (see Motion for Summary Judgment, ¶¶ 3-4, 6). In further support, claimant submits the administrative decision reversing the Superintendent's Hearing from which the alleged illegal confinement allegedly arose (see id., Exhibit A [ Prack Appeal Decision 9/23/13]). Claimant's assertions and his submissions on the motion, however, do not demonstrate prima facie that privilege was lacking. First, claimant merely states that he was denied a fair and impartial hearing without identifying or demonstrating the alleged lack of fairness and impartiality at the hearing, and he does not cite any portions of Title 7 of the NYCRR that were allegedly violated. Second, the administrative decision does not state the reasons for the reversal (see id.), and claimant has not submitted a copy of his submission on his administrative appeal which, if it asserted only a violation of DOCCS regulations or due process, might allow an inference that such a violation was the reason for the administrative reversal. To the extent that claimant asserts that his rights were violated by defendant's failure to disclose the transcript of his disciplinary hearing in response to his discovery request, he asserts no basis upon which to find that such post-hearing conduct is pertinent to the issue of defendant's privilege to confine claimant. In sum, claimant's summary assertions and documentary submissions, without more, are insufficient to demonstrate prima facie that his right to a fair and impartial hearing was violated and that defendant's confinement of him in the SHU was not privileged.
To the extent that defendant has not yet disclosed the transcript to date, claimant may make a motion under CPLR 3120. In its June 9, 2014 response to claimant's discovery request, defendant asserted that a transcript of the hearing had been requested, and that it would be produced by defendant when it was received. (see Adams Affidavit, Exhibit B, ¶ 2).
Accordingly, it is
ORDERED, that claimant's motion number M-88545 is DENIED; and it is further
ORDERED, that defendant's cross motion number CM-88664 is DENIED.
September 22, 2016
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims Papers considered: (1) Claim number 123470, filed November 7, 2013; (2) Verified Answer, filed December 17, 2013; (3) Verified Answer, filed January 23, 2014; (4) Motion for Summary Judgment, sworn to May 4, 2016, with Exhibits A-B; (5) Notice of Cross Motion, dated May 31, 2016; (6) Affirmation of Michael Krenrich, AAG, in Opposition to Claimant's Motion for Summary Judgment and in Support of Defendant's Cross-Motion to Dismiss, dated May 31, 2016, with Exhibits A-F; (7) Rebuttal to Defendant's Motion to Dismiss Summary Judgment Pursuant to CPLR 3212, filed June 13, 2016, with Exhibit A.