Opinion
# 2015-044-517 Claim No. 117224 Motion No. M-86319
04-28-2015
SHAWN GREEN v. THE STATE OF NEW YORK
SHAWN GREEN, pro se HON. ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL BY: Roberto Barbosa, Assistant Attorney General
Synopsis
Inmate claimant's second motion for summary judgment in bailment claim denied, and motion to dismiss defendant's affirmative defenses also dismissed.
Case information
| UID: | 2015-044-517 |
| Claimant(s): | SHAWN GREEN |
| Claimant short name: | GREEN |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 117224 |
| Motion number(s): | M-86319 |
| Cross-motion number(s): | |
| Judge: | CATHERINE C. SCHAEWE |
| Claimant's attorney: | SHAWN GREEN, pro se |
| Defendant's attorney: | HON. ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL BY: Roberto Barbosa, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | April 28, 2015 |
| City: | Binghamton |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant, an inmate proceeding pro se, filed this claim to recover damages suffered as a result of two separate instances of allegedly wrongful confinement imposed after disciplinary hearings held with respect to misbehavior reports issued on April 13, 2009 and April 26, 2009. He also seeks recovery for the confiscation and/or conversion of certain personal property on June 19, 2008 and April 13, 2009. Defendant State of New York (defendant) answered and asserted several affirmative defenses. Thereafter, claimant filed a supplemental claim seeking damages for wrongful confinement based upon a disciplinary hearing held with respect to a misbehavior report issued on August 14, 2009, and damages for a television set which he claims was improperly confiscated in connection with the misbehavior report issued on April 26, 2009. Defendant answered the supplemental claim and again asserted several affirmative defenses. Discovery was conducted. Claimant's motion for summary judgment with respect to the confiscation of both his sweatshirt on April 13, 2009 and his television on April 26, 2009, as well as recovery of $4.90 for postage deducted from his inmate account on June 19, 2008, was denied (Green v State of New York, Ct Cl, Dec. 16, 2011, Schaewe, J., Claim No. 117224, Motion No. M-80211).
Specifically, claimant alleges that on June 19, 2008, he was charged $4.90 in postage for mail which was supposed to have been sent to the Appellate Division, Third Department, but was never received by that Court. He further asserts that a sweatshirt was improperly confiscated from him on April 13, 2009.
Claimant's motion for reargument pertaining to this summary judgment motion was also denied (Green v State of New York, Ct Cl, May 1, 2012, Schaewe, J., Claim No. 117224, Motion No. M-80999).
Thereafter, claimant's motion to compel disclosure and for sanctions (Motion No. M-81979) was granted solely to the extent that defendant was directed to provide responses to certain interrogatories (Green v State of New York, UID No. 2012-044-552 [Ct Cl, Schaewe, J., Dec. 7, 2012]). Defendant's cross motion for summary judgment (Cross Motion No. CM-82195) was granted to the extent that the causes of action for wrongful confinement based upon both the misbehavior report issued April 13, 2009 (and contained in paragraphs 4-7 of the claim), and the misbehavior report issued on August 14, 2009 (and contained in paragraphs 22-27 of the supplemental claim) were dismissed (id.). Claimant filed a notice of appeal with respect to this Decision and Order, and this Court granted claimant's motion to settle the record solely to the extent that the record on appeal was required to comply with the requirements of the Rules of the Appellate Division, Third Department (22 NYCRR) § 800.5, and to include certain delineated documents (Green v State of New York, UID No. 2014-044-508 [Ct Cl, Schaewe, J., Feb. 20, 2014]).
Claimant's motion for reargument of the motion and cross motion was also denied (Green v State of New York, Ct Cl, July 3, 2013, Schaewe, J., Claim No. 117224, Motion No. M-83015).
Claimant now moves again for summary judgment establishing defendant's liability for the confiscation of both his sweatshirt on April 13, 2009 and his television on April 26, 2009, as well as for the improper deduction of $4.90 from his inmate account on June 19, 2008 for postage. Defendant opposes the motion. Claimant replies.
Claimant argues that none of defendant's affirmative defenses have any merit in this claim. He indicates that it is undisputed that he was not provided with any of the authorized options for disposing of his sweatshirt, and cites defendant's failure to produce documentary evidence establishing otherwise. Claimant contends that because his proof of ownership for the television was taken along with the television and defendant has not produced it for the Court, he is entitled to an adverse inference that the document would have been unfavorable to defendant. Lastly, claimant asserts that defendant has not submitted the disbursement form concerning the postage deducted from his inmate account on June 19, 2008 to establish that the intended recipient was not the Third Department.
Conversely, defendant argues that claimant has failed to submit any evidence to support this motion, but instead merely provides conclusory assertions of defendant's liability. Defendant further contends that claimant has failed set forth any basis to dismiss the affirmative defenses.
As defendant aptly notes, multiple motions for summary judgment are not favored by the Courts in the absence of newly discovered evidence or other sufficient cause (Detko v McDonald's Rests. of N.Y., 198 AD2d 208 [2d Dept 1993], lv denied 83 NY2d 752 [1994]; Inter-Power of N.Y. v Niagara Mohawk Power Corp., 259 AD2d 932 [3d Dept 1999], lv denied 93 NY2d 812 [1999]). Neither newly discovered evidence nor any other sufficient cause for another summary judgment motion has been shown in this instance and the motion could be denied solely on this basis.
Defendant also contends that the motion could be denied because claimant failed to include copies of the pleadings as required by CPLR 3212. The motion papers submitted to the Court do contain copies of all appropriate pleadings. The Court notes that in his reply, claimant argues that defendant has not been prejudiced because it was served with the claim and supplemental claim and prepared the answers in response. Regardless of whether defendant has suffered any prejudice, claimant is reminded that he is required to provide defendant with the same documents that he has provided to the Court.
Moreover, claimant, as the proponent of a summary judgment motion, is required to set forth evidentiary facts in admissible form which establish a prima facie showing of entitlement to judgment as a matter of law (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). Once this burden has been met, it is incumbent upon the opposing party to produce admissible evidence sufficient to create material issues of fact requiring a trial of the action (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). However, absent such a prima facie showing by the movant, the motion must be denied, regardless of the sufficiency of the opposing papers (Winegrad, 64 NY2d at 853).
Claimant has not made the requisite prima facie showing in this motion. With respect to the bailment claim for his sweatshirt, he states that "[i]t is undispiutable [sic] that claimant had not been given an opportunity to dispose of [the item]." However, as this Court stated in the Decision and Order concerning claimant's previous summary judgment motion, "there is evidence in the record that [Correction Officer] Summer provided claimant with two opportunities to dispose of the sweatshirt prior to its initial confiscation at the Center Gate. The conflicting statements create a question of credibility which is not properly resolved in a motion for summary judgment" (Green v State of New York, Ct Cl, Dec. 16, 2011, Schaewe, J., Claim No. 117224, Motion No. M-80211 at 7 [citations omitted]). Summary judgment on this cause of action is inappropriate.
Affidavit of Shawn Green, sworn to Jan. 20, 2015, in Support of Motion, ¶ 3.
Claimant asserts that he is entitled to a finding of liability as it pertains to the confiscation of his television because defendant also took claimant's permit, effectively preventing him from proving its ownership. Again, as the Court held previously, although the television was confiscated and has not been returned, claimant still has not established that he owned the television or that it was improperly seized (id. at 5-6). As set forth previously herein, claimant bears the initial burden of proving his entitlement to judgment as a matter of law, a burden which he has not met.
Claimant's argument that defendant has failed "to provide a rebuttable presumption of liability by means of proof required to shift the burden back to claimant," is entirely confusing (id., ¶ 9).
Claimant next contends that $4.90 was deducted from his inmate account for postage to mail an item to the Third Department and defendant's liability is established because the Third Department never received the envelope. This contention is without merit. The documentation submitted on claimant's prior summary judgment motion established that defendant advanced postage in the amount of $4.90 on June 13, 2008 and deducted that amount from claimant's inmate account on June 19, 2008 (id. at 7). There was also evidence that item # 7007 1490 0003 1681 4474 was delivered to the Attorney General's Office on June 16, 2008, creating an inference that the postage advanced on June 13, 2008 and deducted on June 19, 2008 was for mailing an item to the Attorney General's Office and therefore the fact that the Third Department did not receive anything from claimant is not relevant (id. at 8). Claimant erroneously bases defendant's liability for this cause of action upon its purported failure to provide documentary evidence that the $4.90 was used to mail an item to the Attorney General's Office. It is claimant's initial burden to establish (perhaps through documentary evidence such as the disbursement form) that the deduction concerned an item to be mailed to the Third Department as he has alleged. Because claimant has failed to meet this burden, summary judgment must be denied.
This Court also noted that the amount of the certified fee ($2.70) plus the return receipt fee ($2.20) equals $4.90, the exact amount at issue.
To the extent that the motion seeks dismissal of defendant's affirmative defenses, it must also be denied. "A party may move for judgment dismissing one or more defenses, on the ground that a defense is not stated or has no merit" (CPLR 3211 [b]), and that party has the burden of establishing that the defense cannot be maintained (Paladino v State of New York, UID No. 2005-036-102 [Ct Cl, Schweitzer, J., Sept. 15, 2005]). Claimant's conclusory statements that neither cause of action involved a discretionary action and that defendant is unable to prove any culpable conduct on claimant's part are simply insufficient to met his burden. Accordingly, claimant has not established that there is no merit to the defenses.
Claimant also states that the affirmative defense asserting discharge or release is not applicable because defendant did not respond to claimant's offer of settlement. Clearly, this assertion is also not sufficient to establish that the defense cannot be maintained.
In conclusion, claimant's motion for summary judgment establishing defendant's liability with respect to the causes of action pertaining to confiscation of both his sweatshirt and his television, as well as recovery of $4.90 for postage deducted from his inmate account is denied. The motion is also denied to the extent claimant seeks dismissal of defendant's affirmative defenses.
Accordingly, Motion No. M-86319 is denied in its entirety.
April 28, 2015
Binghamton, New York
CATHERINE C. SCHAEWE
Judge of the Court of Claims
The following papers were read on claimant's motion:
1) Notice of Motion filed on January 28, 2015; Affidavit of Shawn Green sworn to on January 20, 2015, and attachments; Memorandum of Law dated January 20, 2015.
2) Affirmation in Response of Roberto Barbosa, Assistant Attorney General, dated March 17, 2015, and attached exhibits.
3) Reply of Shawn Green sworn to on March 22, 2015.
Filed papers: Claim filed on August 5, 2009; Supplemental Claim filed on September 14, 2009; Verified Answer filed on September 16, 2009; Verified Answer to Supplemental Claim filed on October 21, 2009.