Opinion
# 2021-032-011 Claim No. 131773 Motion No. M-95807
01-13-2021
ALBERT SHERMAN v. STATE OF NEW YORK
Albert Sherman, Pro Se Hon. Letitia James, Attorney General By: Ray A. Kyles, AAG
Synopsis
Pro se claimant's motion for summary judgment is denied.
Case information
| UID: | 2021-032-011 |
| Claimant(s): | ALBERT SHERMAN |
| Claimant short name: | SHERMAN |
| Footnote (claimant name) : | |
| Defendant(s): | STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 131773 |
| Motion number(s): | M-95807 |
| Cross-motion number(s): | |
| Judge: | JUDITH A. HARD |
| Claimant's attorney: | Albert Sherman, Pro Se |
| Defendant's attorney: | Hon. Letitia James, Attorney General By: Ray A. Kyles, AAG |
| Third-party defendant's attorney: | |
| Signature date: | January 13, 2021 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant, an inmate proceeding pro se, filed the instant claim on July 26, 2018. The claim states that on March 21, 2017, claimant was assaulted by several correction officers at Five Points Correctional Facility. The claim states that several officers used excessive force by punching and kicking him while he was unrestrained and continued after he was handcuffed. Claimant now moves for summary judgment. Defendant opposes the motion.
Defendant argues that the motion should be dismissed on procedural grounds because claimant failed to include a copy of the Answer with the motion as required by CPLR 3212 (b). CPLR 3212 (b) requires that a motion for summary judgment be supported by a copy of the pleadings. However, "[t]he record is sufficiently complete when, although the movant has not attached all of the pleadings to the motion, a complete set of the papers is available from the materials submitted" (Washington Realty Owners, LLC v 260 Washington St., LLC, 105 AD3d 675, 675 [1st Dept. 2013]). Here, defendant submitted a copy of the Answer in its response papers. Therefore, the record is sufficiently complete and the Court may consider the merits of the motion (see Welch v Hauck, 18 AD3d 1096, 1098 [3d Dept. 2005], lv denied 5 NY3d 708 [2005]).
Summary judgment is a drastic remedy which should not be granted unless it is clear that there are no triable issues of fact (Andre v Pomeroy, 35 NY2d 361, 364 [1974]). The Court's function on a motion for summary judgment is not to resolve issues of fact, but to determine whether issues of fact exist (see Barr v County of Albany, 50 NY2d 247, 254 [1980]). The proponent of a motion for summary judgment must establish a prima facie entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). Once the proponent of a motion for summary judgment has set forth such a prima facie entitlement to judgment as a matter of law, the burden shifts to the opponent of the motion to produce evidentiary proof, in admissible form, sufficient to establish the existence of material issues of fact which require a trial of the action (id.; Winegrad New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). In determining a motion for summary judgment, the Court must examine the proof in the light most favorable to the party opposing the motion, here, defendant (Robinson v Strong Mem. Hosp., 98 AD2d 976, 976 [4th Dept. 1983]). 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 (CPLR 3212 [b]). Failure to make a prima facie showing requires denial of summary judgment, regardless of the sufficiency of the opposing papers (Winegrad v New York Univ. Med. Ctr., 64 NY2d at 853).
A correction officer may not "inflict any blows whatever upon any inmate, unless in self defense, or to suppress a revolt or insurrection" (Correction Law § 137[5]). However, where "any inmate . . . shall offer violence to any person, or do or attempt to do any injury to property, or attempt to escape, or resist or disobey any lawful direction, the officers and employees shall use all suitable means to defend themselves, to maintain order, to enforce observation of discipline, to secure the persons of the offenders and to prevent any such attempt or escape" id.; see also 7 NYCRR 251-1.2 [d] [a correction officer "shall not lay hands on or strike an inmate unless the employee reasonably believes that the physical force to be used is reasonably necessary: for self-defense; to prevent injury to person or property; to enforce compliance with a lawful direction; to quell a disturbance; or to prevent an escape."]). Where a correction officer must use physical force, "only such degree of force as is reasonably required shall be used" (7 NYCRR § 251-1.2 [b]). To determine whether the use of force was necessary and, if so, whether the force used was excessive or unreasonable, a court must examine the specific circumstances confronting the correction officers (see Bush v State of New York, 57 AD3d 1066, 1067 [3d Dept. 2008]). Thus, "the credibility of the witnesses is generally the dispositive factor" (McDonald v State of New York, UID No. 2011-041-505 [Ct Cl, Milano, J., May 3, 2011], citing Davis v State of New York, 203 AD2d 234 [2d Dept. 1994]).
Claimant has failed to establish his entitlement to summary judgment as the Use of Force Memoranda attached to the summary judgment motion belie claimant's assertion that the correction officers used physical force that was excessive in light of the circumstances. One Use of Force Memorandum states "I . . . saw [claimant] spinning off the wall and striking officer [] with both hands using closed fists." Another Use of Force Memorandum signed by a correction officer indicates that claimant disobeyed several direct orders to stop resisting the application of mechanical restraints and continued resisting even after the mechanical restraints were applied (see Affidavit of Claimant, Attachments), and the Inmate Behavior Report submitted with defendant's opposition papers indicates that claimant struck a correction officer approximately twelve times in the face and head prior to being restrained (Affidavit of Ray A. Kyles, AAG, Exhibit F). These submissions clearly create a question of fact as to whether the force used to restrain claimant was reasonable under the circumstances (see Bush v State of New York, supra at 1067).
Several portions of the the Use of Force Memoranda submitted by claimant are crossed out by heavy black ink, including the names of the correction officers who signed the memoranda.
Claimant also requests that the Court issue a judicial subpoena for the video recording of the incident. However, claimant has not demonstrated that he served a discovery demand on defendant for the production of the recording. Claimant must first attempt to obtain the recording by properly serving a demand upon defendant (Towner v State of New York, UID No. 2012-032-031 [Ct Cl, Hard, J., June 27, 2012]). Accordingly, the Court denies claimant's request.
Based upon the foregoing, claimant's motion for summary judgment (M-95807) is DENIED.
January 13, 2021
Albany, New York
JUDITH A. HARD
Judge of the Court of Claims Papers Considered: 1. Notice of Motion for Summary Judgment; and Affidavit in Support of Motion for Summary Judgment, sworn to by claimant on August 11, 2020, with Attachments. 2. Affirmation in Opposition to Claimant's Motion for Summary Judgment, affirmed by Ray A. Kyles, AAG on September 8, 2020, with Exhibits A through G annexed thereto.