New York State Court of Claims

New York State Court of Claims

MC KINLEY v. THE STATE OF NEW YORK, #2004-031-072, Claim No. 107323, Motion No. M-68011


Synopsis


Questions of fact exist concerning whether Defendant violated rules and regulations relating to disciplinary hearings. Claimant's motion for summary judgment is denied

Case Information

UID:
2004-031-072
Claimant(s):
SINCERE MC KINLEY
Claimant short name:
MC KINLEY
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
107323
Motion number(s):
M-68011
Cross-motion number(s):

Judge:
RENÉE FORGENSI MINARIK
Claimant's attorney:
SINCERE MC KINLEY, PRO SE
Defendant's attorney:
HON. ELIOT SPITZER
New York State Attorney General
BY: HEATHER R. RUBINSTEIN, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
June 21, 2004
City:
Rochester
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)

.
Decision

The following papers, numbered 1 to 3, were read on motion by Claimant for summary judgment:
1. Claimant's Affidavit (denominated Affirmation), sworn to September 1, 2003, with attached exhibit;
2. Affirmation of Heather R. Rubinstein, Esq., dated March 16, 2004 with attached exhibit;
3. Claimant's unsworn statement (denominated Reply Affirmation), dated March 18, 2004. This is Claimant's motion for summary judgment. The claim in this matter, filed on February 13, 2003, alleges that Claimant was illegally confined following a Tier III disciplinary hearing. That hearing, which concerned Claimant's alleged violation of Rule 102.10 (threats), was conducted at Auburn Correctional Facility on December 19, 2002. Claimant alleges in his claim that his subsequent confinement was illegal because he was denied due process during the disciplinary hearing. Specifically, he states that the hearing officer was not fair and impartial, and that he was improperly denied the right to call witnesses.

Claimant appears to base his motion upon the fact that I previously denied Defendant's motion to dismiss the claim, finding that Claimant had stated a valid cause of action for illegal confinement. However, stating a cause of action and proving a cause of action are two different matters.

Defendant opposes Claimant's motion, arguing that questions of fact exist as to whether or not the hearing officer was biased and whether or not the hearing officer properly refused to call the witnesses Claimant requested. I agree.

In any application for summary judgment, the moving party bears a heavy burden of establishing that he or she is entitled to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact (Andre v Pomeroy, 35 NY2d 361; Winegrad v New York Univ. Med. Center, 64 NY2d 851, 853). Summary judgment is a drastic remedy which deprives a party of its day in court and should not be granted where there is any doubt as to the existence of a material issue of fact (Moskowitz v Garlock, 23 AD2d 943; Epstein v Scally, 99 AD2d 713). Claimant has failed to meet this burden. I find that questions of fact exist as to whether the rules and regulations that govern disciplinary hearings were followed. Claimant has not demonstrated, as a matter of law, that the hearing officer was biased. Similarly, although improperly denying a witness can be a violation, the regulations also give the hearing officer discretion regarding such matters, and in many instances, calling a particular witness may be properly refused (see 7 NYCRR 253.5).

Accordingly, it is hereby

ORDERED, that Claimant's motion for summary judgment is denied.

June 21, 2004
Rochester, New York

HON. RENÉE FORGENSI MINARIK
Judge of the Court of Claims