Opinion
# 2016-040-050 Claim No. 125953 Motion No. M-88305 Cross-Motion No. CM-88372
07-11-2016
MOHAMMED BHUIYAN v. THE STATE OF NEW YORK
Mohammed Milon Bhuiyan, #042-380-373, Pro Se ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Anthony Rotondi, Esq., AAG
Synopsis
Claimant's second Motion for Summary Judgment denied. State's Cross-Motion to Dismiss also denied.
Case information
| UID: | 2016-040-050 |
| Claimant(s): | MOHAMMED BHUIYAN |
| Claimant short name: | BHUIYAN |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 125953 |
| Motion number(s): | M-88305 |
| Cross-motion number(s): | CM-88372 |
| Judge: | CHRISTOPHER J. McCARTHY |
| Claimant's attorney: | Mohammed Milon Bhuiyan, #042-380-373, Pro Se |
|---|---|
| Defendant's attorney: | ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Anthony Rotondi, Esq., AAG |
| Third-party defendant's attorney: | |
| Signature date: | July 11, 2016 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
For the reasons set forth below, Claimant's second Motion for summary judgment in his favor pursuant to CPLR 3212 is denied and the State's Cross-Motion to dismiss is also denied.
This pro se Claim, which was filed with the Clerk of the Court on April 13, 2015, alleges that, on October 24, 2014, Claimant was escorted from his dormitory to the Special Housing Unit (hereinafter, "SHU") at Bare Hill Correctional Facility; that, on October 27, 2014, he received a Tier III Misbehavior Report charging him with possessing a weapon. A Tier III Hearing was commenced on November 6, 2014 and Claimant was found guilty of the charges on November 20, 2014. Claimant filed an administrative appeal of the hearing officer's determination on December 10, 2014. The Hearing Officer's determination was reversed on February 4, 2015. Claimant seeks compensation for an alleged wrongful confinement.
Claimant's Motion is difficult to decipher. If he is seeking leave to appeal, such motion is properly made to the Appellate Division (see, generally, CPLR Article 55). If his motion is one for summary judgment, it is the second time he has made such a motion (see Bhuiyan v State of New York, UID No. 2016-040-006 [Ct Cl, McCarthy, J., Jan. 26, 2016]). 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 has failed to set forth what, if any, newly discovered evidence justifies a second summary judgment motion. Therefore, Claimant's Motion is denied.
The Court now turns to Defendant's Cross-Motion to dismiss for failure to state a cause of action pursuant to CPLR 3211(a)(7) and for failure to meet the particularity requirements of Court of Claims Act § 11(b). In support of the Cross-Motion, Defendant asserts that Claimant, in his Notice of Intention and Claim, fails to allege that his confinement was not privileged or that, in conducting the disciplinary proceeding, Defendant failed to comply with a rule or regulation governing a disciplinary hearing; that no wrongdoing on the part of the Defendant has been alleged. Therefore, Defendant asserts, the Claim fails to status a cause of action against the State. Defendant further asserts that the Claim fails to satisfy the pleading requirements of Court of Claims Act § 11(b) due to the same infirmities that form the basis of the motion to dismiss for failure to state a cause of action. The Claim does not allege any wrongdoing on the part of Defendant. Such insufficiency divests the Court of subject matter jurisdiction and requires dismissal. Defendant states that it is well established that the failure to satisfy the substantive pleading requirements is a jurisdictional defect that requires dismissal of the Claim (Kolnacki v State of New York, 8 NY3d 277, 280-281 [2007]; Lepkowski v State of New York, 1 NY3d 201, 209 [2003]) (Affirmation in Support of Anthony Rotondi, Esq., Assistant Attorney General, ¶¶ 11, 12).
Defendant seeks dismissal of the wrongful confinement cause of action pursuant to CPLR 3211(a)(7), on the basis that Claimant fails to state a cause of action, rather than making a motion for summary judgment pursuant to CPLR 3212. No notice has been given by this Court pursuant to CPLR 3211(c) that would fairly advise the parties that the motion was being converted from a motion to dismiss to a summary judgment motion, or the issues that would be deemed dispositive of the action. Additionally, it cannot be said that the parties have deliberately charted a summary judgment course on the State's Cross-Motion (Henbest & Morrisey v W.H. Ins. Agency, 259 AD2d 829 [3d Dept 1999]; Four Seasons Hotels v Vinnik, 127 AD2d 310, 318, 320 [1st Dept 1987]). On a motion to dismiss a claim pursuant to CPLR 3211(a)(7), the court must "accept the facts as alleged in the [claim] as true, accord [claimant] the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory" (Leon v Martinez, 84 NY2d 83, 87-88 [1994]; see also Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326 [2002]; Dee v Rakower, 112 AD3d 204, 208 [2d Dept 2013]). Thus, the determination is made by reference to whether "the proponent of the pleading has a cause of action, not whether he has stated one" (id. at 88 [quotation marks and citations omitted]).
Here, Claimant's allegations that he was wrongfully confined to SHU do not consist of base legal conclusions nor are they flatly contradicted by documentary evidence. The result is that, in determining this motion to dismiss, the Court must accept the allegations of the Claim as true and ignore opposing affidavits (Griffin v Anslow, 17 AD3d 889, 891-892 [3d Dept 2005]; Henbest & Morrisey v W.H. Ins. Agency, supra at 830; Matter of Morey v City of Gloversville, 203 AD2d 625, 626 [3d Dept 1994]). Defendant's legal arguments that Claimant cannot establish that his confinement was not privileged or that, in conducting the disciplinary proceeding, Defendant failed to comply with a rule or regulation governing a disciplinary hearing, may be the basis of a different motion but does not result in Claimant's factual averments not stating a cognizable cause of action for wrongful confinement.
The Court's function on a motion to dismiss is to determine whether the Claimant possesses a cause of action, not simply whether he has stated one. Claimant asserts that Defendant wrongfully confined him and that he has suffered physical and mental injuries as a result. This is a cognizable cause of action. Therefore, the portion of the motion to dismiss the Claim for failure to state a cause of action, pursuant to CPLR 3211(a)(7), is denied.
The Court now turns to the portion of the State's Cross-Motion asserting that the Claim does not meet the pleading requirements of Court of Claims Act §11 (b). The statute requires that, "[t]he claim shall state the time when and place where such claim arose, the nature of same, and the items of damage or injuries claimed to have been sustained and … the total sum claimed" (see Demonstoy v State of New York, 130 AD3d 1337 [3d Dept 2015]). Defendant asserts that the nature of the Claim is not stated as Claimant failed to allege any wrongdoing by the State. The Court, however, finds that Claimant has stated the nature of the Claim, i.e. wrongful confinement, and has otherwise provided sufficient particularity to apprise Defendant as to the nature of the Claim. Therefore, the portion of the motion to dismiss the Claim for failure to comply with the pleading requirements of Court of Claims Act § 11(b) is denied.
July 11, 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 and Defendant's Cross-Motion to Dismiss: Papers Numbered Notice of Motion, Affidavit in Support and Exhibits Attached 1 Notice of Cross-Motion and Affirmation 2 Filed Papers: Claim, Answer