Claimant's motion for partial summary judgment is denied. No pleadings were attached and Claimant failed to establish that he was wrongfully confined as a matter of law.
|Claimant short name:||PHELPS|
|Footnote (claimant name) :|
|Defendant(s):||STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||DIANE L. FITZPATRICK|
|Claimant's attorney:||DARRYL PHELPS
|Defendant's attorney:||NO APPEARANCE|
|Third-party defendant's attorney:|
|Signature date:||July 22, 2021|
|See also (multicaptioned case)|
Claimant brings a motion for partial summary judgment. Defendant has not responded to
Claimant filed a claim on March 2, 2021, seeking damages for wrongful confinement at Gouverneur Correctional Facility. Defendant interposed a verified answer and filed it on April 8, 2021.
As it is often said, summary judgment is a drastic remedy which should only be granted where there are no issues of fact and the claim can be decided as a matter of law (Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395 ). On a motion for summary judgment, the movant has the burden to establish his right to judgment as a matter of law by proof in admissible form (Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1067-1068 ). Only then must the opposing party come forward with evidentiary proof to establish the existence of a material fact which would require a trial (Friends of Animals, 46 NY2d at1067-1068; Zuckerman v City of New York, 49 NY2d 557 ). The evidence submitted on the motion for summary judgment must be viewed in the light most favorable to the nonmoving party, giving that party the benefit of any favorable inference (Ruzycki v Baker, 301 AD2d 48, 50 [4th Dept 2002]; Boston v Dunham, 274 AD2d 708, 709 [3d Dept 2000]). The motion should not be granted where there are questions of fact or "where the issue is 'arguable' " (Sillman, 3 NY2d at 404, quoting Barrett v Jacobs, 255 NY 520, 522 ).
Here, Claimant has failed to attach a copy of the pleadings. This alone requires denial of the motion, regardless of the sufficiency of the supporting papers or the lack of opposition (Tudisco v Mincer, 126 AD3d 1501 [4th Dept 2015]; Senor v State of New York, 23 AD3d 851 [3d Dept 2005]; [4th Dept 1999]; Logan v L. A. Mgt. & Rest., 275 AD2d 1026 [4th Dept 2000]). However, even if Claimant had attached a copy of the pleadings, the motion would be denied. Claimant did not establish, as a matter of law, that he was wrongfully confined, that his disciplinary hearing was conducted in violation of the governing rules and regulations, or that without any due process violation the disciplinary findings would have been different.
Accordingly, Claimant's motion for partial summary judgment is DENIED.
July 22, 2021
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) "Affidavit" of Darryl Phelps, in support, unsworn, dated "April 2021", with
exhibits attached thereto.
3) Supplemental "affidavit" of Darryl Phelps dated April 26, 2021, with attachments thereto.
The Court received "Amended and Supplemental Pleadings" on or about June 23, 2021, which were not considered as it was filed after the return date of the motion.
1. Claimant attached an affidavit of service to his motion indicating that he served the motion upon an Assistant Attorney General in Utica on April 12, 2021.