Opinion
# 2016-040-107 Claim No. 126639 Motion No. M-89124
12-21-2016
TREVIS L. FUNCHES v. STATE OF NEW YORK
Trevis L. Funches, Pro Se ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Belinda A. Wagner, Esq., AAG
Synopsis
Pro se Claimant's motion to strike the State's Answer and for summary judgment denied.
Case information
| UID: | 2016-040-107 |
| Claimant(s): | TREVIS L. FUNCHES |
| Claimant short name: | FUNCHES |
| Footnote (claimant name) : | |
| Defendant(s): | STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 126639 |
| Motion number(s): | M-89124 |
| Cross-motion number(s): | |
| Judge: | CHRISTOPHER J. McCARTHY |
| Claimant's attorney: | Trevis L. Funches, Pro Se |
|---|---|
| Defendant's attorney: | ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Belinda A. Wagner, Esq., AAG |
| Third-party defendant's attorney: | |
| Signature date: | December 21, 2016 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
For the reasons set forth below, the motion of Claimant, Trevis L. Funches, appearing pro se, to strike the State's Answer and for summary judgment in his favor is denied.
This pro se Claim was filed in the office of the Clerk of the Court on August 24, 2015 and alleges that, on May 19, 2015 at Eastern NY Correctional Facility (hereinafter, "Eastern"), where Claimant was incarcerated, he was threatened by correction Sergeant Tacti. Claimant also alleges that Sergeants Bunce and Tacti conspired to deprive him of his State constitutional rights. Claimant further asserts that he was confined to Eastern's Special Housing Unit (hereinafter, "SHU") pending the receipt of a misbehavior report charging him with possessing contraband and smuggling on May 20, 2015. Claimant also alleges that his cell was searched and certain items of personal property were taken from his cell by officers without a confiscation slip being provided to him pursuant to a Department of Corrections and Community Supervision directive. Claimant further states that he was found guilty of the charges at a disciplinary hearing and the hearing officer's determination was affirmed. Claimant asserts that he was wrongfully confined to SHU, his constitutional rights were violated, that State employees were improperly trained, and that his property was stolen by State employees.
By Decision and Order dated February 23, 2016, this Court granted Defendant's Motion to Dismiss portions of the Claim. The Court dismissed any cause of action against named individuals and the causes of action alleging State and Federal Constitutional violations (Funches v State of New York, UID No. 2016-040-014 [Ct Cl, McCarthy, J., Feb. 23, 2016]).
The State's Answer to the Claim, which was filed in the office of the Clerk of the Court on October 26, 2015, admits only that a Notice of Intention to File a Claim was served upon Defendant, denies knowledge or information sufficient to form a belief as to the majority of the allegations contained in the Claim, and denies the rest. The State also asserts nine affirmative defenses in its Answer.
CPLR 3018 relates to responsive pleadings. Subdivision (a) refers to denials and states that "[a] party shall deny those statements known or believed by him to be untrue. He shall specify those statements as to the truth of which he lacks knowledge or information sufficient to form a belief and this shall have the effect of a denial."
According to Professor Patrick M. Connors, when an allegation is denied, the allegation must be proved by the party pleading it (see Connors, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3018:2, at 299). The burden is thus upon Claimant to establish the allegations that were denied in the State's Answer.
A motion to dismiss defenses may be made on the ground that a defense is not stated or has no merit (CPLR 3211[b]). "[A]n affirmative defense should not be dismissed if there is any doubt as to its availability" (Thy Tran v Avis Rent A Car, 289 AD2d 731, 732 [3d Dept 2001]; see Nahrebeski v Molnar, 286 AD2d 891 [4th Dept 2001]). "It is well settled that '[o]n a motion to dismiss a defense pursuant to CPLR 3211(b), all of defendant's allegations must be deemed to be true and defendant is entitled to all reasonable inferences to be drawn from the submitted proof' " (Capital Tel. Co. v Motorola Communications and Elecs., 208 AD2d 1150, 1150 [3d Dept 1994], quoting Grunder v Recckio, 138 AD2d 923, 923 [4th Dept 1988]; see Suarez v State of New York, 60 AD3d 1243 [3d Dept 2009]). Moreover, the movant "[bears] the burden of demonstrating that those defenses [are] without merit as a matter of law" (Vita v New York Waste Services, LLC, 34 AD3d 559, 559 [2d Dept 2006]; see Suarez v State of New York, 14 Misc 3d 1230[A] [Ct Cl 2006], affd 60 AD3d 1243, supra).
The Court has reviewed the nine affirmative defenses raised by Defendant. Claimant has not addressed each defense separately and asserts, in only general and conclusory fashion, that no defense is stated. Each defense must stand pending a factual determination of the issue raised in each defense. The portion of Claimant's motion to strike the Answer, therefore, is denied.
The Court now turns to the portion of the Motion that seeks summary judgment. 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) 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).
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 (see Shannon v State of New York, 111 AD3d 1077 [3d Dept 2013]; Loret v State of New York, 106 AD3d 1159 [3d Dept 2013], lv denied 22 NY3d 852 [2013]; Davis v State of New York, 262 AD2d 887, 888 [3d Dept 1999]). Here, Claimant has not set forth any facts in his affidavit to support his assertion that Defendant's employees responsible for his discipline acted in excess of their authority or in violation of any relevant rules or regulations (Loret v State of New York, supra at 1159).
The Appellate Division, Third Department, in Matter of Funches v New York State Dept. of Corr. & Community Supervision (141 AD3d 1006 [3d Dept 2016]), annulled the determination of Claimant's guilt based upon a finding that the determination was not supported by substantial evidence, and not upon a conclusion that Defendant's employees acted in excess of their authority or departed from any applicable statutory or regulatory direction (see Loret, supra at 1159-1160). Thus, Claimant has failed to establish that Defendant violated the rules and regulations governing the disciplinary process or that Defendant's employees acted in excess of their authority, and has failed to establish that he is entitled to judgment as a matter of law. Therefore, based upon the foregoing, that portion of Claimant's Motion for summary judgment in his favor is denied.
December 21, 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 to strike Defendant's Answer and for summary judgment: Papers Numbered Notice of Motion, Affidavit & Exhibits attached 1 Affirmation in Opposition 2 Claimant's Reply 3 Filed Papers: Claim, Answer