New York State Court of Claims

New York State Court of Claims

MALIK v. THE STATE OF NEW YORK, #2007-038-557, Claim No. 113091, Motion Nos. M-72896


M-72975, CM-73265


Synopsis

In claim for failure to timely release claimant from SHU, defendant's motion to serve late answer due to law office failure granted (CPLR 3012[d] and 2005). Claimant's motion for summary judgment granted and defendant's cross motion for summary judgment denied where defendant did not submit admissible proof sufficient to raise a triable issue of fact regarding possible justification for extended detention in SHU.

Case Information

UID:
2007-038-557
Claimant(s):
ABDUL-JABBOR MALIK
Claimant short name:
MALIK
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
113091
Motion number(s):
M-72896M-72975
Cross-motion number(s):
CM-73265
Judge:
W. BROOKS DeBOW
Claimant’s attorney:
ABDUL-JABBOR MALIK, Pro se
Defendant’s attorney:
ANDREW M. CUOMO, Attorney General of the State of New York
By: Michael T. Krenrich, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
September 10, 2007
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant, an inmate incarcerated in a State correctional facility, seeks compensation for damages he allegedly sustained as a result of defendant’s failure to timely release him from a Special Housing Unit (SHU). Claimant has filed Motion No. M-72896, in which he moves for summary judgment on the claim, and which is opposed by defendant. Claimant has also filed Motion No. M-72975, in which he seeks an order striking defendant’s answer or, in the alternative, an order striking defendant’s fourth and fifth affirmative defenses. Defendant’s Cross-Motion No. CM-73265 is submitted in response to M-72975, and seeks summary judgment dismissing the claim or, in the alternative, an order compelling claimant to accept its untimely answer. Turning first to that part of claimant’s Motion No. M-72975 that is addressed to defendant’s untimely answer and that part of defendant’s cross motion seeking relief from its failure to timely serve the answer, defendant was required to have served the answer within 40 days after service of the claim (see 22 NYCRR § 206.7 [a]), or, in this claim, no later than January 17, 2007. Due to law office failure, an answer that had been timely prepared was mistakenly returned to counsel’s file rather than served upon claimant, and, ultimately, it was not served until February 12, 2007 (Krenrich Affirmation, April 24, 2007, at ¶¶ 22-25). CPLR 3012 (d) authorizes the Court to extend the period of time to serve an answer, and, upon an application pursuant to that section, CPLR 2005 expressly provides that the Court may exercise its discretion to grant relief related to untimely service of an answer due to law office failure (see Wagenknecht v Government Employees Ins. Co., 97 AD2d 407, 408 [2d Dept 1983]; see also Jacobs v State of New York, UID # 2004-031-140, Claim # 105897, Motion No. M-68119, Minarik, J. [Nov. 1, 2004]; Kalwasinski v State of New York, UID # 2001-011-568, Claim No. 104011, Motion No. M-63525, McNamara, J. [Aug. 1, 2001]; cf. Korea Exchange Bank v Attilio, 186 AD2d 634 [2d Dept 1992] [court did not abuse its discretion in denying such relief when six month delay was attributed to unsubstantiated assertion of law office failure]). Here, defendant’s failure to timely serve the answer was not willful, the period of delay of less than one month was minimal, and claimant does not make a persuasive showing of substantive prejudice suffered as a result of the untimely service (see Kalwasinski, supra). Accordingly, the time for service of the answer will be extended and the answer served on February 12, 2007 will be deemed timely served nunc pro tunc.

With respect to claimant’s motion for summary judgment, it is well established that a motion for summary judgment must establish, by proof in admissible form, the right to judgment as a matter of law (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1067 [1979]). If the movant establishes prima facie entitlement to summary judgment, the burden then shifts to the opponent of the motion to establish, by admissible proof, the existence of genuine issues of material fact (Alvarez v Prospect Hosp., supra; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).

In the context of prison disciplinary proceedings, “the actions of Correction Department employees in preparing and filing misbehavior reports, confining inmates, and making dispositions following Superintendents’ hearings entail discretionary decisions” that are quasi-judicial in nature (Arteaga v State of New York, 72 NY2d 212, 219 [1988]) and which are cloaked with absolute immunity (id.). However, the release of an inmate from disciplinary confinement upon the expiration of his penalty “is a purely ministerial act invoking no discretionary authority” (Gittens v State of New York, 132 Misc 2d 399, 406 [Ct Cl 1986]), and when an inmate is subjected to continued confinement that lacks a statutory or regulatory basis, liability for the wrongful excessive confinement may be found (see id.; Minieri v State of New York, 204 AD2d 982 [4th Dept 1994]; Applegate v State of New York, UID # 2002-011-109, Claim No. 103537, McNamara, [July 8, 2002]; Cuevas v State of New York, UID # 2000-029-026, Claim No. 95347; Mignano, J. [Oct. 19, 2000] Modeste v State of New York, Claim No. 93290, Patti, J. [Nov. 17, 1999]; Cherry v State of New York, Claim No. 95810, O’Rourke, J. [Sept. 22, 1999]; cf. Ramirez v State of New York, 171 Misc 2d 677, 681 [Ct Cl 1997]).

In his affidavit in support of his motion, claimant states that he was retained in the SHU for six days beyond his scheduled release date and that to his knowledge there was no legal basis for the continued detention. Therefore, claimant has established by proof in admissible form his entitlement to summary judgment, thereby shifting the burden to defendant to establish, by admissible proof, the existence of genuine issues of material fact. In the cursory affirmation of counsel submitted in opposition to claimant’s motion, defendant does not dispute that claimant was held beyond the release date or argue that there was a legal basis for the detention, and instead presents arguments based on the law that are either misplaced or that raise factual and legal issues that are irrelevant to a determination of the State’s liability in this case, which is based upon wrongful excessive confinement due to defendant’s failure to release claimant upon the expiration of his SHU penalty (see Krenrich Affirmation, Feb. 28, 2007, ¶¶ 5-7; see also Gittens v State, supra). Moreover, in opposition to claimant’s motion, defendant did not submit any admissible proof, let alone any admissible proof that would establish the existence of any genuine issue of material fact. Accordingly, claimant has demonstrated prima facie his entitlement to judgment as a matter of law, which defendant has failed to defeat in its opposition papers.

In support of its subsequently submitted cross motion for summary judgment,[1] defendant asserts that claimant’s transfer out of SHU was beset with logistical difficulties that prevented claimant from being released, and which justify the six day delay. Defendant relies upon Modeste v State of New York (supra) and Applegate v State of New York (supra) for the proposition that “logistical difficulties” encountered by DOCS in transferring an inmate out of punitive housing may in certain circumstances justify an inmate’s untimely release from SHU. To particularize the difficulties encountered in this case, defendant submits the affidavit of Jo Anne Clegg, the Inmate Records Coordinator at Upstate Correctional Facility (see Krenrich Affirmation, Apr. 24, 2007, Exhibit F). Clegg’s affidavit sets forth various facts that she has determined “[b]ased upon a review of records of the claimant” (id., at ¶ 2). This affidavit is insufficient to support defendant’s cross motion for summary judgment because it is “made by one lacking personal knowledge of the relevant facts, solely on the basis of documents that are not before the court” (Wamco XVII Ltd. v Chestnut Estates Dev. Corp., 251 AD2d 888, 889 [3d Dept 1998]; see Eddy v Tops Friendly Markets, 91 AD2d 1203 [4th Dept 1983], affd 59 NY2d 692 [1983]; Walter v Niagara Mohawk Power Corp., 193 AD2d 1065 [4th Dept 1993]). In other words, because Clegg lacks personal knowledge of the logistical difficulties and the measures that may have been taken by defendant to surmount them, and because defendant has submitted no other evidence in support of its cross motion, defendant has failed to demonstrate that it was justified in failing to timely release claimant from the SHU, and thus, its cross motion for summary judgment must be denied.

In light of this Court’s disposition of the motions for summary judgment, that part of claimant’s motion seeking dismissal of affirmative defenses need not be addressed.

Accordingly, it is

ORDERED, that claimant’s Motion No. M-72975 is DENIED in its entirety, and it is further

ORDERED, that that part of defendant’s Cross Motion No. CM-73265 seeking an order compelling claimant to accept its untimely answer is GRANTED, the time for service of the answer is extended and the answer served on February 12, 2007 is deemed timely served nunc pro tunc, and the Cross Motion is in all other respects DENIED, and it is further

ORDERED, that claimant’s Motion No. M-72896 is GRANTED.

The Chief Clerk of the Court of Claims is directed to enter an interlocutory judgment in favor of claimant. A trial on damages shall be scheduled.

September 10, 2007
Albany, New York

HON. W. BROOKS DEBOW
Judge of the Court of Claims


Papers considered
:


(1) Claim # 113091, filed December 11, 2006;

(2) Verified Answer, filed February 13, 2007;

(3) Notice of Motion for Summary Judgment (M-72896), dated January 24, 2007;

(4) Affidavit of Abdul-Jabbor Malik, sworn to January 13, 2007;

(5) Affirmation in Opposition to Claimant’s Motion for Summary Judgment of Michael T. Krenrich, AAG, dated February 28, 2007;

(6) Claimant’s Objections to Defendant’s Affirmation, dated February 28, 2007, with exhibits;

(7) Notice of Motion in Point of Law to Strike Defendant’s Answer and Defenses (M-72975), dated February 16, 2007;

(8) Affidavit of Abdul-Jabbor Malik, sworn to February 16, 2007;

(9) Notice of Cross-Motion (CM-73265), dated April 24, 2007;

(10) Affirmation in Opposition to Claimant’s Motion to Strike Defendant’s Answer and in Support of Defendant’s Cross-Motion for Summary Judgment of Michael T. Krenrich, AAG, dated April 24, 2007, with exhibits A-F ,including the Affidavit of Jo Anne Clegg, sworn to April 20, 2007;

(11) Claimant’s Objections to Defendant’s Cross-Motion, sworn to April 26, 2007;

(12) Correspondence of Abdul-Jabbor Malik, dated April 24, 2007;

(13) Claimant’s Memorandum of Law, dated April 26, 2007;

(14) Claimant’s Memorandum of Law, dated May 27, 2007.

[1]. Curiously, defendant’s cross motion for summary judgment was not submitted in response to claimant’s motion for summary judgment, but in a later opposition to claimant’s motion to strike defendant’s answer. Claimant’s motion and defendant’s cross motion both seek judgment in each party’s favor, and thus, the return date of claimant’s motion was adjourned so that the competing motions could be considered simultaneously.