Opinion
# 2015-041-020 Claim No. 124300 Motion No. M-86069
02-24-2015
DIANE WORD v. THE STATE OF NEW YORK
DIANE WORD Pro Se HON. ERIC T. SCHNEIDERMAN New York State Attorney General By: Douglas R. Kemp, Esq. Assistant Attorney General
Synopsis
Claimant's motion for summary judgment is denied where claimant's brief and conclusory allegations of exposure to tobacco smoke and wrongful solitary confinement fail to satisfy her initial burden to establish that she is entitled to judgment as a matter of law.
Case information
| UID: | 2015-041-020 |
| Claimant(s): | DIANE WORD |
| Claimant short name: | WORD |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 124300 |
| Motion number(s): | M-86069 |
| Cross-motion number(s): | |
| Judge: | FRANK P. MILANO |
| Claimant's attorney: | DIANE WORD Pro Se |
| Defendant's attorney: | HON. ERIC T. SCHNEIDERMAN New York State Attorney General By: Douglas R. Kemp, Esq. Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | February 24, 2015 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant moves for summary judgment on her claim alleging that defendant wrongfully confined her and caused her to be exposed to tobacco smoke. Defendant opposes the claimant's motion.
The standard for review of the motion is well-established. "A motion for summary judgment should be entertained only after the moving party has established, by competent admissible evidence, that it is entitled to judgment as a matter of law. . . . If the movant meets this initial burden, the opposing party is required to submit evidence which raises a material issue of fact to preclude an award of summary judgment" (Ware v Baxter Health Care Corp., 25 AD3d 863, 864 [3d Dept 2006]).
Once the moving party has satisfied this initial obligation, the burden shifts and the party opposing the motion must demonstrate by admissible evidence the existence of a factual issue (Svoboda v Our Lady of Lourdes Mem. Hosp., Inc., 31 AD3d 877 [3d Dept 2006]).
Summary judgment is "a drastic remedy" (Lebanon Val. Landscaping v Town of Moriah, 258 AD2d 732, 733 [3d Dept 1999]). It "is the procedural equivalent of a trial . . . and should be granted only when it has been established that there is no triable issue of material fact" (Harris v State of New York, 187 Misc 2d 512, 517 [Ct Cl 2001]; see Paulin v Needham, 28 AD3d 531 [2d Dept 2006]).
Claimant has failed to satisfy her initial burden with respect to the claim of exposure to tobacco smoke while incarcerated. In Matter of Alamin v New York State Dept. of Correctional Servs. (241 AD2d 586, 587 [3d Dept 1997]), the court explained that "noncompliance with the smoking ban does not subject [defendant] to legal proceedings or liability (see, Public Health Law § 1399-w)."
To establish that she was wrongfully confined, claimant must prove that "(1) the defendant intended to confine [claimant], (2) the [claimant] was conscious of the confinement, (3) the [claimant] did not consent to the confinement and (4) the confinement was not otherwise privileged" (Broughton v State of New York, 37 NY2d 451, 456 [1975], cert denied sub nom. Schanbarger v Kellogg, 423 US 929 [1975]; Krzyzak v Schaefer, 52 AD3d 979 [3d Dept 2008]).
It is unclear from claimant's brief and conclusory allegations as to whether she alleges that her purported wrongful confinement is based upon her incarceration generally, or upon confinement related to disciplinary proceedings.
Generally, with respect to whether a confinement is privileged, Holmberg v County of Albany (291 AD2d 610, 612 [3d Dept 2002], lv denied 98 NY2d 604 [2002]), instructs that: "[W]here a facially valid order issued by a court with proper jurisdiction directs confinement, that confinement is privileged . . . and everyone connected with the matter is protected from liability for false imprisonment."
In the context of confinement pursuant to a prison disciplinary proceeding, such confinement is "privileged to the extent that it was under color of law or regulation, specifically in accordance with [inmate misbehavior] regulations" (Gittens v State of New York, 132 Misc 2d 399, 402 [Ct Cl 1986]).
The Court finds that claimant has failed to meet her initial burden to present a prima facie case of wrongful confinement because she has alleged no facts or evidence beyond conclusory statements that she was subjected to "wrongful solitary confinement . . . continuously since March 26, 1996 up to March 11, 2014."
In particular, claimant has not offered any factual allegations or evidence that her confinement was not "otherwise privileged" (37 NY2d at 456).
Claimant's motion for summary judgment is denied.
February 24, 2015
Albany, New York
FRANK P. MILANO
Judge of the Court of Claims
Papers Considered:
1. Claimant's Notice of Motion for Summary Judgment, filed December 16, 2014;
2. Affidavit of Diane Word, sworn to December 11, 2014, and attached exhibits;
3. Affirmation of Douglas R. Kemp, dated January 13, 2014 [sic];
4. Reply Declaration of Diane Word, dated January 20, 2015.