Claimant filed this motion pursuant to CPLR 3212 seeking summary judgment in
his favor. The Court hereby denies the motion.
The Court has considered the following papers in connection with this
1. Claim, verified January 21, 2004, filed January 29, 2004, with attached
2. Answer, verified February 13, 2004, filed February 18, 2004;
3. Notice of Motion dated March 22, 2004, filed April 1, 2004;
4. Affidavit in Support of Motion for Summary Judgment of Andrew Sandson, sworn
to March 22, 2004, with attached exhibits;
5. Affirmation in Opposition to Motion for Summary Judgment of Thomas G.
Ramsay, affirmed April 28, 2004, with attached exhibits.
Summary judgment is a drastic remedy, one which should not be granted where
there is any doubt as to the existence of a triable issue of fact (Rotuba
Extruders, Inc. v Ceppos, 46 NY2d 223, 231; Sillman v Twentieth
Century-Fox Film Corp., 3 NY2d 395, 404 ), with issue-finding rather
than issue-determination the focus of the Court in reviewing the submissions
(Sillman, 3 NY2d at 404). To obtain such disfavored relief a movant must
establish his cause of action or defense "sufficiently to warrant the court as a
matter of law in directing judgment" in his favor (CPLR 3212 [b]), and must do
so by tender of evidentiary proof in admissible form (Friends of Animals v
Associated Fur Mfrs., 46 NY2d 1065, 1067 ). Conversely, once a movant
has satisfied that burden the party opposing the motion would have the burden of
showing facts sufficient to require a trial of any issue of fact, or demonstrate
an acceptable excuse for the inability to tender such proof in admissible form
(CPLR 3212 [b]; Friends of Animals, 46 NY2d at 1067-1068; Zuckerman v
City of New York, 49 NY2d 557, 562 ).
Claimant, while an inmate at Attica Correctional Facility, alleged that
Defendant negligently lost his property after transferring him to a Special
Housing Unit on September 29, 2003. He subsequently pursued his institutional
administrative remedies, then filed and served this Claim. Following joinder of
the issue on February 18, 2004, Claimant filed this motion for summary judgment.
Defendant has opposed the motion, and has submitted contradictory proof in
evidentiary form that all of Claimant's items were in fact packed and
transferred with him to the Special Housing Unit. Therefore, a triable issue of
fact exists requiring denial of summary judgment.
Claimant's request for oral argument is denied. Pursuant to 22 NYCRR §
206.9 (c), such applications rest within the discretion of the Court. In this
matter oral argument would not assist the Court in making its
Based upon the above, it is
ORDERED, that Claimant's motion for summary judgment is denied.