Opinion
# 2015-040-011 Claim No. 123974 Motion No. M-85988
03-09-2015
ANDRE J. MELETTE v. THE STATE OF NEW YORK
Andre J. Melette, Pro Se ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Anthony Rotondi, Esq., AAG
Synopsis
Claimant's second motion for partial summary judgment in his favor denied.
Case information
UID: | 2015-040-011 |
Claimant(s): | ANDRE J. MELETTE |
Claimant short name: | MELETTE |
Footnote (claimant name) : | |
Defendant(s): | THE STATE OF NEW YORK |
Footnote (defendant name) : | |
Third-party claimant(s): | |
Third-party defendant(s): | |
Claim number(s): | 123974 |
Motion number(s): | M-85988 |
Cross-motion number(s): | |
Judge: | CHRISTOPHER J. McCARTHY |
Claimant's attorney: | Andre J. Melette, 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: | March 9, 2015 |
City: | Albany |
Comments: | |
Official citation: | |
Appellate results: | |
See also (multicaptioned case) |
Decision
For the reasons set forth below, Claimant's second motion for partial summary judgment in his favor on the issue of liability on his first cause of action is denied.
This pro se Claim, which was filed with the Clerk of the Court on February 25, 2014, alleges two separate and distinct causes of action for wrongful confinement, both of which arose at Bare Hill Correctional Facility located in Malone, New York ("Bare Hill").
The first cause of action asserts that Claimant was wrongfully confined for a period of 30 days, from October 26, 2013 to November 25, 2013. Claimant alleges that, on October 26, 2013, he was placed in disciplinary confinement pending a Tier II hearing and that he received a copy of a Tier II misbehavior report on October 27, 2013, charging him with violating three specific prison rules, that was signed by a Bare Hill nurse. A disciplinary hearing was commenced on October 31, 2013 and Claimant advised the hearing officer that there was a procedural error in the misbehavior report (Claim, ¶ 6). Claimant asserts that the hearing officer did not dismiss the charges, but, instead, adjourned the hearing in order to obtain testimony from the nurse (id., ¶ 7). Claimant asserts that two additional extensions were granted, adjourning the hearing to November 21, 2013 (id., ¶¶ 8-9). On November 19, 2013, Claimant sent a letter to the Bare Hill Superintendent advising him of the above facts and requesting that the charges against him be dismissed (id., ¶ 11). On November 20, 2013, Claimant received a memorandum from the Bare Hill Superintendent advising him that Claimant's correspondence had been received and had been referred to the Deputy Superintendent for Security for review and response (id., ¶12). On November 25, 2013, Claimant received a memorandum from Captain Boyd stating that the October 26, 2013 misbehavior report was reviewed and the hearing had been expunged from Claimant's record (id., ¶ 13). Claimant states that he was released from confinement on that date and was wrongfully confined for 30 days.
The second cause of action alleges that Claimant was wrongfully confined for 60 days (January 27, 2014 to March 27, 2014) following a Tier III disciplinary hearing. Claimant asserts that the hearing officer improperly took testimony from three employee witnesses and requested a time extension until the fourteenth day and he failed to ascertain why Claimant's inmate witness refused to testify (Claim, ¶ 23).
Claimant, for the second time, moves for partial summary judgment on the issue of liability regarding the first cause of action only. 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).
As the Court stated above, this is Claimant's second motion for summary judgment. 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 again relies solely upon his own affidavit to support his motion. He has now specified the alleged procedural error that he asserts is contained in the misbehavior report which he claims is in violation of Department of Corrections and Community Supervision rules. However, Claimant has neither made a showing that this information was newly discovered after his first motion, nor has he offered any other cause for not submitting the information in his prior motion. The evidence that was not submitted in support of the prior motion for summary judgment must be used to establish facts that were not available to the moving party at the time of the first motion and which could not have been established through alternative evidentiary means (Vinar v Litman, 110 AD3d 867, 868-869 [2d Dept 2013]; see Pavlovich v Zimmet, 50 AD3d 1364, 1365 [3d Dept 2008]). In fact, it has been held that " successive motions for summary judgment should not be made based upon facts or arguments which could have been submitted on the original motion for summary judgment" (Capuano v Platzner Intl. Group, 5 AD3d 620, 621 [2d Dept 2004]). Claimant has made no showing that the information submitted in connection with this motion could not have been submitted in connection with his original motion.
Assuming, arguendo, that this motion was properly made, it would still be denied. Claimant asserts that the State did not follow its own rules and regulations by issuing a misbehavior report which contained a procedural error. However, Claimant has not established by means of admissible evidence that the rules and regulations were not followed. While he established that the hearing officer's determination was reversed and expunged on administrative appeal, he has not established the reason for that determination. Thus, Claimant has failed to 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.
March 9, 2015
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 partial summary judgment:
Papers Numbered
Notice of Motion, Affidavit in Support
& Memorandum of Law & Exhibits attached 1
Affirmation in Opposition 2
Reply 3
Papers Filed: Claim, Answer