Opinion
# 2021-015-022 Claim No. 134692 Motion No. M-96101
02-09-2021
JESSWILL PEREZ, DIN #16-A-5237 v. STATE OF NEW YORK
Jesswill Perez, Pro Se Honorable Letitia James, Attorney General By: Michael T. Krenrich, Esq., Assistant Attorney General
Synopsis
Claimant's motion for summary judgement on his wrongful confinement claim was denied for failure to demonstrate his prima facie entitlement thereto.
Case information
| UID: | 2021-015-022 |
| Claimant(s): | JESSWILL PEREZ, DIN #16-A-5237 |
| Claimant short name: | PEREZ |
| Footnote (claimant name) : | |
| Defendant(s): | STATE OF NEW YORK |
| Footnote (defendant name) : | The caption has been amended sua sponte to reflect the only properly named defendant. |
|---|---|
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 134692 |
| Motion number(s): | M-96101 |
| Cross-motion number(s): | |
| Judge: | FRANCIS T. COLLINS |
| Claimant's attorney: | Jesswill Perez, Pro Se |
| Defendant's attorney: | Honorable Letitia James, Attorney General By: Michael T. Krenrich, Esq., Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | February 9, 2021 |
| City: | Saratoga Springs |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant, an inmate proceeding pro se, moves for summary judgment pursuant to CPLR 3212.
Following a prison disciplinary hearing in which he was found guilty of certain rule violations, claimant was confined to the Special Housing Unit (SHU) at Great Meadow Correctional Facility for the period November 13, 2019 through February 11, 2020. The claim, filed on May 26, 2020, alleges the hearing officer's guilty determination was administratively reversed on January 30, 2020 and seeks damages for wrongful confinement, among other causes of action, arising from various due process violations which allegedly occurred during the course of the hearing.
Claimant's motion, which is comprised of a Notice of Motion and Affidavit of Service, fails to meet the procedural and substantive requirements for summary judgment.
CPLR 3212 (b) states, in pertinent part, the following:
"A motion for summary judgment shall be supported by affidavit, by a copy of the pleadings and by other available proof, such as depositions and written admissions. The affidavit shall be by a person having knowledge of the facts; it shall recite all the material facts; and it shall show that there is no defense to the cause of action or that the cause of action or defense has no merit."
The papers submitted in support of claimant's motion do not include an affidavit, the pleadings or any items of proof, much less proof in admissible form. As made clear by the Court of Appeals in Vega v Restani Constr. Corp. (18 NY3d 499, 503 [2012]):
"On 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.). The moving party's '[f]ailure to make [a] prima facie showing [of entitlement to summary judgment] requires a denial of the motion, regardless of the sufficiency of the opposing papers' (id. [emphasis added])."
Inasmuch as claimant failed to meet his burden of establishing his entitlement to summary judgment, the motion must be denied. Accordingly, claimant's motion is denied.
February 9, 2021
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims Papers Considered:
1. Notice of Motion dated April 7, 2020;
2. Affidavit of Service of motion sworn to April 16, 2020;
3. Affirmation in opposition dated December 10, 2020, with Exhibit A.