Opinion
# 2016-018-722 Claim No. 127284 Motion No. M-88264
05-12-2016
ARTURO R. TOLENTINO Pro Se ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Ray A. Kyles, Esquire Assistant Attorney General
Synopsis
Claimant's motion for summary judgment must be denied. Claimant failed to submit a copy of the pleadings and documentation establishing that he is entitled to summary judgment. Additionally, there appear to be issues of fact.
Case information
UID: | 2016-018-722 |
Claimant(s): | ARTURO R. TOLENTINO |
Claimant short name: | TOLENTINO |
Footnote (claimant name) : | |
Defendant(s): | STATE OF NEW YORK |
Footnote (defendant name) : | |
Third-party claimant(s): | |
Third-party defendant(s): | |
Claim number(s): | 127284 |
Motion number(s): | M-88264 |
Cross-motion number(s): | |
Judge: | DIANE L. FITZPATRICK |
Claimant's attorney: | ARTURO R. TOLENTINO Pro Se |
Defendant's attorney: | ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Ray A. Kyles, Esquire Assistant Attorney General |
Third-party defendant's attorney: | |
Signature date: | May 12, 2016 |
City: | Syracuse |
Comments: | |
Official citation: | |
Appellate results: | |
See also (multicaptioned case) |
Decision
Claimant brings a motion for summary judgment pursuant to CPLR 3212. Defendant opposes the motion.
Claimant, an inmate, seeks damages for his alleged wrongful confinement in the Special Housing Unit (SHU) at Watertown Correctional Facility for 75 days beginning on September 23, 2015. Claimant was served with a misbehavior report alleging he violated disciplinary rule 105.13, which prohibits an inmate from engaging in or encouraging gang activity. Claimant alleges that he was denied due process, subject to cruel and unusual treatment, and intentional infliction of emotional distress. He alleges in the claim that the misbehavior report failed to contain adequate factual allegations as required by the regulations (Directive No. 4932 § 251-3.1 [c] [1] and [3], § 253.3). He also alleges the misbehavior finding was based upon hearsay from Sergeant Hosley and an unidentified confidential informant and failed to identify the method of determination (§ 253-6).
A party making a summary judgment motion bears the burden to show that there are no questions of fact and the case may be decided as a matter of law (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). "Failure to make such a showing requires denial of the motion regardless of the sufficiency of the opposing papers." (Winegrad, 64 NY2d at 853). The movant is also required, pursuant to CPLR 3212 (b), to submit a copy of the pleadings as part of the supporting proof. Failure to submit a copy of the claim and the defendant's answer has been found to be grounds alone to deny a summary judgment motion (Tudisco v Mincer, 126 AD3d 1501 [4th Dept 2015]; Senor v State of New York, 23 AD3d 851, 852 [3d Dept 2005]). Here, Claimant has failed to submit a copy of the pleadings and has also failed to submit documentation establishing that he is entitled to summary judgment. There also appear to be many issues of fact.
Accordingly, Claimant's motion is DENIED.
May 12, 2016
Syracuse, New York
DIANE L. FITZPATRICK
Judge of the Court of Claims The Court has considered the following in deciding this motion: 1) Notice of Motion. 2) "Affirmation" of Arturo R. Tolentino, pro se, in support, verified on March 8, 2016, with exhibit attached thereto. 3) Affirmation of Ray A. Kyles, Esquire, Assistant Attorney General, in opposition.