New York State Court of Claims

New York State Court of Claims

LAMAGE v. THE STATE OF NEW YORK, #2005-015-054, Claim No. 109310, Motion No. M-70659


Claimant's motion seeking summary judgment denied as not being properly supported by evidence in admissible form

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant’s attorney:
Edwin Lamage, Pro Se
Defendant’s attorney:
Honorable Eliot Spitzer, Attorney General
By: Stephen J. MaherAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
November 16, 2005
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant's motion for partial summary judgment on the fourth cause of action stated in the claim is denied. The motion seeks to hold the State liable for alleged wrongful confinement of the claimant in keeplock at Auburn Correctional Facility (Auburn) from January 14, 2003 through January 21, 2003. In his affidavit in support of the motion claimant alleges that he was wrongfully confined in his cell at Auburn Correctional Facility from January 14, 2003 through January 21, 2003. While he alleges in general terms that he was not timely served with a misbehavior report, was deprived of a disciplinary hearing and was not provided a copy of a disposition in violation of DOCS regulations he has not provided any evidentiary materials which would tend to support these allegations. The defendant's investigation report attached to the motion papers is not in admissible form and does not establish that claimant's confinement was wrongful.

Defendant opposed the motion.

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, 294 AD2d 653).

Claimant has not supported the motion by proof sufficient to establish his right to judgment as a matter of law. Claimant's motion is therefore denied.

November 16, 2005
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated August 28, 2005;
  2. Affidavit of Edwin Lamage sworn to August 28, 2005 with exhibit;
  3. Affirmation of Stephen J. Maher dated September 30, 2005.