Opinion
# 2015-016-012 Claim No. 124366 Motion No. M-86013
03-16-2015
TYRONE RUDOLPH v. THE STATE OF NEW YORK
Tyrone Rudolph, Pro Se Eric T. Schneiderman, Attorney General By: Roberto Barbosa, AAG
Synopsis
Case information
UID: | 2015-016-012 |
Claimant(s): | TYRONE RUDOLPH |
Claimant short name: | RUDOLPH |
Footnote (claimant name) : | |
Defendant(s): | THE STATE OF NEW YORK |
Footnote (defendant name) : | |
Third-party claimant(s): | |
Third-party defendant(s): | |
Claim number(s): | 124366 |
Motion number(s): | M-86013 |
Cross-motion number(s): | |
Judge: | Alan C. Marin |
Claimant's attorney: | Tyrone Rudolph, Pro Se |
Defendant's attorney: | Eric T. Schneiderman, Attorney General By: Roberto Barbosa, AAG |
Third-party defendant's attorney: | |
Signature date: | March 16, 2015 |
City: | New York |
Comments: | |
Official citation: | |
Appellate results: | |
See also (multicaptioned case) |
Decision
Tyrone Rudolph has moved for summary judgment on his claim for the value of ten packs of cigarettes that were confiscated from him at Sullivan Correctional Facility (Sullivan CF) on January 29, 2014.
The defendant State of New York opposes the motion on the ground that there is a factual issue as to whether the cigarettes were contraband and therefore subject to confiscation under Directive # 4910A of the Department of Corrections and Community Supervision (DOCCS). Mr. Rudolph, in both his claim and affidavit in support of his motion, states that he had received his cigarettes in accordance with DOCCS Directive # 4911 and Sullivan CF's Policy and Procedure # 2002.
See exhibit B of defendant's affirmation in opposition to claimant's motion.
Paragraphs 15 and 9, respectively.
Each side has submitted a fair number of documents; in any event, this matter comes down to a basic issue: an inmate may possess tobacco products, but they are for personal consumption and may not be used for exchange. Included in defendant's papers is a report from its investigation of the matter, dated February 27, 2014, which states that Rudolph was witnessed by an officer "exchanging cigarettes . . . on multi occasions."
See exhibit E of claimant's affidavit in support.
The report is contained in exhibit A of defendant's affirmation in opposition to claimant's motion.
The defendant further submits package room receipts that it contends indicate that Rudolph had not ordered cigarettes in years, nor had he purchased them at the commissary. Claimant counters with receipts that he maintains show otherwise. At this point, the receipts are not particularly easy to decipher, irrespective of which party is the source.
The Court concludes that material facts are in dispute which require a trial for resolution; summary judgment is not appropriate here. See, for example, Repeti v McDonald's Corp., 49 AD3d 1089 (3d Dept 2008). Accordingly, and having reviewed the submissions of the parties, IT IS ORDERED that motion No. M-86013 be denied.
The following were reviewed: claimant's Notice of Motion for Summary Judgment and Affidavit in Support (with exhibits A through G); and defendant's Affirmation in Opposition to Claimant's Motion (with exhibits A and B).
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March 16, 2015
New York, New York
Alan C. Marin
Judge of the Court of Claims