Claimant's motion for an order pursuant to CPLR 3212 striking the defendant's
answer and directing summary judgment in favor of claimant for the relief
demanded in the claim is denied except as noted below. The instant claim seeks
damages for excessive wrongful confinement. Claimant alleges that following his
conviction for murder in the second degree he was sentenced on November 6, 1991
to a term of 25 years to life and thereafter improperly sent for processing to
the Department of Correctional Services (DOCS) Downstate Correctional Facility,
instead of to the more age appropriate Elmira Reception Center. The claim
alleges further that while serving that life sentence claimant was charged with
attempted assault in the second degree within a correctional facility (Penal Law
§ 120.05 ). It is alleged that he was initially sentenced to a
determinate term of three years upon a plea of guilty to that charge but the
sentencing court, after being notified by DOCS that claimant was not eligible
for a determinate term of imprisonment (Exhibit D [d]), re-sentenced claimant
to an indeterminate term of 1 ½ to 3 years (Exhibit D [e]). Claimant
alleges that the re-sentencing related above nullified the murder sentence for
which he was then institutionalized and warranted his transfer to the Downstate
Correctional Facility Reception Center for reclassification and the assignment
of a new prisoner identification number. He asserts that after re-sentencing he
was instead improperly returned to Upstate Correctional Facility's Special
Housing Unit (SHU) on June 27, 2002 and held there until October 19, 2003 on 23
hour per day lock down. Claimant argues that he was subjected to two separate
and distinct periods of excessive wrongful confinement from November 15, 1991
to the present and from June 27, 2002 to the present.
He now moves to strike defendant's answer and for summary judgment awarding him
$100 per day from November 15, 1991 to the present on the first cause of action
and from June 27, 2002 to the present on the second cause of action.
The defendant opposed the motion by the affirmations of defense counsel and
Richard deSimone, an attorney employed by DOCS since 1986 and DOCS' Associate
Counsel in charge of the Office of Sentencing Review since 1995.
Mr. deSimone alleges in his affirmation that claimant's 1991 transfer to
Downstate Correctional Facility for processing was appropriate for two reasons.
First, claimant's rap sheet lists two dates of birth; May 14, 1970 and May 14,
1971. Under the former date claimant would have been more than 21 years of age
when he was sentenced on November 6, 1991. Secondly, Downstate Correctional
Facility has been designated as a "reception center for males who are between 16
and 21 years of age at the time of sentencing" as well as "a reception center
for males 21 years of age or older" since October 31, 1990 pursuant to 7 NYCRR
Mr. deSimone also asserts that DOCS Directive 4007 currently provides, and
provided at the time of claimant's November 15, 1991 delivery into DOCS custody,
that an inmate shall retain the inmate identification number (DIN #) initially
assigned him or her until the maximum expiration of the inmate's sentence. As a
result, Mr. deSimone argues that the imposition of an additional sentence for
attempted assault in the second degree did not necessitate either reprocessing
or the assignment of a new DIN #.
The affiant further maintains that by operation of law (Penal Law § §
70.30 , Criminal Procedure Law § 430.10) claimant's sentences for murder
in the second degree and possession of a weapon in the second degree commenced
upon his delivery to DOCS in 1991 and have run uninterrupted since that time.
Absent a vacatur or modification of claimant's murder sentence, according to
deSimone, New York law does not provide for reduction or discharge from a
maximum term of life imprisonment imposed for murder in the second degree.
Mr. deSimone further alleges that claimant's confinement in the SHU from June
29, 2001 (sic) to October 19, 2003 was related to claimant's violation of
unspecified disciplinary rules which resulted in the imposition of a period of
restricted confinement and was not affected by either his sentencing or
re-sentencing on the attempted assault charge.
Finally, Mr. deSimone argues that since claimant was already a DOCS' inmate at
the time of the June 27, 2002 re-sentencing it was unnecessary for claimant to
repeat the reception process at Downstate Correctional Facility as claimant
Claimant filed a reply affidavit in which he objects to the deSimone
affirmation as hearsay.
Claimant's motion seeks an order striking the defendant's First, Fifth, Sixth,
Ninth, Eleventh, Thirteenth, Fourteenth, Fifteenth and Sixteenth defenses as
without merit. It is well established that upon a motion to strike defenses
the movant bears the burden of coming forward with sufficient proof to
demonstrate that the defense cannot be maintained (Arquette v State of New
York, 190 Misc 2d 676) and the defendant is entitled to every reasonable
construction of the pleading and every favorable inference to be drawn therefrom
(see, Nahrebeski v Molnar, 286 AD2d 891; Warwick v Cruz,
270 AD2d 255). A motion to dismiss a defense should not be granted where there
exists any doubt as to its potential viability (see, Abney v
Lunsford, 254 AD2d 318; Krantz v Garmise, 13 AD2d 426; Abdullah v
State of New York, Ct Cl, December 7, 2001 [Claim No. 104525; Motion No.
M-64269] Bell, J., UID # 2001-007-141, unreported).
Viewing each of the named defenses in this light it is obvious that the First,
Eleventh, Fourteenth, Fifteenth and Sixteenth defenses set forth in the
have no application to the causes of
action alleged in the claim. Those five defenses are therefore stricken as
lacking in merit. The remaining defenses are found by the Court to be
potentially viable and, accordingly, claimant's motion to strike the answer in
its entirety must be denied.
The rules applicable to the determination of a motion for summary judgment were
clearly stated by the Court of Appeals in Alvarez v Prospect Hosp., 68
NY2d 320, 324:
As we have stated frequently, the proponent of a summary judgment motion must
make a prima facie showing of entitlement to judgment as a matter of law,
tendering sufficient evidence to demonstrate the absence of any material issues
of fact (Winegrad v New York Univ. Med. Center, 64 NY2d 851, 853;
Zuckerman v City of New York, 49 NY2d 557, 562; Sillman v Twentieth
Century-Fox Film Corp., 3 NY2d 395, 404). Failure to make such prima facie
showing requires a denial of the motion, regardless of the sufficiency of the
opposing papers (Winegrad v New York Univ. Med. Center, supra, at
p 853). Once this showing has been made, however, the burden shifts to the
party opposing the motion for summary judgment to produce evidentiary proof in
admissible form sufficient to establish the existence of material issues of fact
which require a trial of the action (Zuckerman v City of New York,
supra, at p 562).
The proponent of a summary judgment motion may only meet its initial burden
through the submission of evidentiary proof in admissible form (Rifenburgh v
Wilczek, 2002 WL 826797 [NY AD 3d Dept.).
To properly consider claimant's motion for summary judgment the Court must
first examine the elements of a cause of action for excessive wrongful
In order to establish a prima facie
case of wrongful confinement which
is a species of the tort of false imprisonment ( see, Gittens v State
of New York
, 132 Misc 2d 399, at 407) a claimant must show "... (1) the
defendant intended to confine him, (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
, 37 NY2d 451, 456). Neither claimant's affidavit nor the exhibits
attached thereto demonstrate claimant's prima facie
judgment as a matter of law. Claimant has not cited the Court to any rule,
regulation, directive, statute or controlling case
which support his contention that as a 20
year old inmate he was improperly sent to Downstate Correctional Facility for
processing in November of 1991 or that DOCS was required to return him to
Downstate for additional processing upon his re-sentencing on an attempted
assault charge in June 2002. Nor has he demonstrated that his confinement in
the SHU at Upstate Correctional from June 27, 2002 until October 19, 2003 was
not privileged. Since claimant has not established his entitlement to judgment
as a matter of law the motion must be denied. Even if claimant were found to
have sustained his burden, the opposition presented was sufficient to raise
material issues of fact requiring denial of the motion.
Claimant's motion to strike the answer and to award summary judgment is
therefore denied except as specifically noted above.