Pro se Claimant's Motion to strike State's Answer and for summary judgment denied.
|Claimant short name:||CARGILL|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||CHRISTOPHER J. McCARTHY|
|Claimant's attorney:||Malik Cargill, Pro Se|
|Defendant's attorney:||ERIC T. SCHNEIDERMAN
Attorney General of the State of New York
By: Michael C. Rizzo, Esq., AAG
|Third-party defendant's attorney:|
|Signature date:||July 14, 2017|
|See also (multicaptioned case)|
For the reasons set forth below, the Motion of Claimant, Malik Cargill, appearing pro se, to strike the State's Answer and for summary judgment in his favor is denied.
This pro se Claim, which was filed in the office of the Clerk of the Court on February 22, 2017, asserts that Claimant was wrongfully confined to the Special Housing Unit (hereinafter, "SHU") from October 14, 2016 through January 3, 2017 at Bare Hill Correctional Facility and Upstate Correctional Facility. It is alleged that Claimant was issued a misbehavior report on October 17, 2016, which was dated October 14, 2016, that involved an incident on October 12, 2016 (Ex. A attached to Claim). A disciplinary hearing was held and concluded on November 1, 2016. The hearing officer found Claimant guilty of the charges and, among other penalties, imposed 270 days in SHU (id.). Claimant filed an administrative appeal of the hearing officer's determination and the determination was reversed on January 3, 2017 and a rehearing was directed to be commenced within seven days of receipt of the notification (Ex. B attached to Claim). The Claim further asserts that no rehearing was held and that Claimant was confined in SHU until he was transferred to general population at Clinton Correctional Facility on or about January 16, 2017 (Claim, p. 2, ¶¶ 5, 6).
The State's Verified Answer to the Claim, which was filed in the office of the Clerk of the Court on March 28, 2017, admits the allegations contained in paragraph 1 of the Claim concerning Claimant's address, and denies knowledge or information sufficient to form a belief as to the majority of the allegations contained in the Claim, and denies the rest. The State also asserts nine affirmative defenses in its Answer.
CPLR 3018 relates to responsive pleadings. Subdivision (a) refers to denials and states that "[a] party shall deny those statements known or believed by him to be untrue. He shall specify those statements as to the truth of which he lacks knowledge or information sufficient to form a belief and this shall have the effect of a denial."
According to Professor Patrick M. Connors, when an allegation is denied, the allegation must be proved by the party pleading it (see Connors, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3018:2, at 299). The burden is thus upon Claimant to establish the allegations that were denied in the State's Answer.
A motion to dismiss defenses may be made on the ground that a defense is not stated or has no merit (CPLR 3211[b]). "[A]n affirmative defense should not be dismissed if there is any doubt as to its availability" (Thy Tran v Avis Rent A Car, 289 AD2d 731, 732 [3d Dept 2001]; see Nahrebeski v Molnar, 286 AD2d 891 [4th Dept 2001]). "It is well settled that '[o]n a motion to dismiss a defense pursuant to CPLR 3211(b), all of defendant's allegations must be deemed to be true and defendant is entitled to all reasonable inferences to be drawn from the submitted proof' " (Capital Tel. Co. v Motorola Communications and Elecs., 208 AD2d 1150, 1150 [3d Dept 1994 quoting Grunder v Recckio, 138 AD2d 923, 923 [4th Dept 1988]; see Suarez v State of New York, 60 AD3d 1243 [3d Dept 2009]). Moreover, the movant "[bears] the burden of demonstrating that those defenses [are] without merit as a matter of law" (Vita v New York Waste Services, LLC, 34 AD3d 559, 559 [2d Dept 2006]; see Suarez v State of New York, 14 Misc 3d 1230[A] [Ct Cl 2006], affd 60 AD3d 1243, supra).
The Court has reviewed the nine affirmative defenses raised by Defendant. Claimant has not addressed each defense separately and asserts, in only general and conclusory fashion, that no defense is stated. Each of these nine defenses must stand pending a factual determination of the issue raised in each defense. Accordingly, the portion of Claimant's Motion to strike the Answer, therefore, is denied.
The Court now turns to the portion of the Motion that seeks summary judgment. Summary judgment is a drastic remedy to be granted sparingly and only where no material issue of fact is demonstrated in the papers related to the motion (see Crowley's Milk Co. v Klein, 24 AD2d 920 [3d Dept 1965]; Wanger v Zeh, 45 Misc 2d 93 [Sup Ct, Albany County 1965], affd 26 AD2d 729 [3d Dept 1966]). CPLR 3212(b) requires that a motion for summary judgment be supported by a copy of the pleadings (Capelin Assoc. v Globe Mfg. Corp., 34 NY2d 338 ). In support of his Motion, Claimant did not submit a copy of the Claim or Verified Answer to the Claim. The failure to include all the pleadings in support of a motion for summary judgment requires that the motion be denied, regardless of the merits of the motion (Davis v State of New York, _AD3d_ [3d Dept 2017], 2017 WL 2674276; Senor v State of New York, 23 AD3d 851 [3d Dept 2005]; Bonded Concrete, Inc. v Town of Saugerties, 3 AD3d 729 [3d Dept 2004], lv dismissed 2 NY3d 793 ; Deer Park Assocs. v Robbins Store, 243 AD2d 443 [2d Dept 1997]; CPLR 3212[b]).
Therefore, based upon the foregoing, that portion of Claimant's Motion for summary judgment in his favor is denied.
July 14, 2017
Albany , New York
CHRISTOPHER J. McCARTHY
Judge of the Court of Claims
The following papers were read and considered by the Court on Claimant's Motion to strike Defendant's Answer and for summary judgment:
Notice of Motion, Affidavit
& Exhibits attached 1
Affirmation in Opposition
& Exhibits attached 2
Filed Papers: Claim, Answer