New York State Court of Claims

New York State Court of Claims

GREEN v. THE STATE OF NEW YORK, #2008-015-072, Claim No. 113099, Motion No. M-74952


Synopsis


Claimant's third successive motion for summary judgment was denied.

Case Information

UID:
2008-015-072
Claimant(s):
SHAWN GREEN
Claimant short name:
GREEN
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
113099
Motion number(s):
M-74952
Cross-motion number(s):

Judge:
FRANCIS T. COLLINS
Claimant’s attorney:
Shawn Green, Pro Se
Defendant’s attorney:

Honorable Andrew M. Cuomo, Attorney General
By: Michael T. Krenrich, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
September 25, 2008
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant, an inmate proceeding pro se, moves for partial summary judgment on his causes of action for wrongful confinement stemming from two separate periods of allegedly unlawful confinement, assault and medical negligence. This is the claimant's third motion for summary judgment on this claim. The first such motion was denied by Decision and Order dated April 3, 2007 as issue had not been joined at the time the motion was made and the claimant failed to support his motion "by affidavit, by a copy of the pleadings and by other available proof " as required pursuant to CPLR 3212 (b) (Green v State of New York, Ct Cl, April 3, 2007 [Claim No. 113099, Motion No. M-72689, UID # 2007-015-174] Collins, J., unreported).

The second motion was granted in part and denied in part. By Decision and Order dated October 31, 2007, this Court granted that branch of the claimant's motion which sought summary judgment on his wrongful confinement cause of action alleging the defendant failed to conduct a hearing within seven days of his confinement in the Special Housing Unit (SHU) at Great Meadow Correctional Facility which began on November 15, 2006 (see 7 NYCRR 251-5.1 [a]). The remaining bases for the claimant's motion for summary judgment were denied[1] (Green v State of New York, Ct Cl, October 31, 2007 [UID # 2007-015-241, Claim No. 113099, Motion No. M-73701] Collins, J., unreported) . Claimant's motion for leave to reargue the second summary judgment motion was denied by Decision and Order dated April 4, 2008 (Green v State of New York, Ct. Cl, April 4, 2008 [UID # 2008-015-026, Claim No. 113099, Motion No. M-74378] Collins J., unreported.

The instant motion for summary judgment is directed to those portions of the claim which allege that issuance of the misbehavior reports on October 16, 2006 and November 15, 2006 were arbitrary and capricious, that claimant's resulting confinement in SHU was, therefore, wrongful and that the Great Meadow Correctional Facility medical staff failed to provide claimant timely medical care.

The affidavit submitted by the claimant in support of his motion contains conclusory assertions of liability on the part of the defendant and provides no factual, evidentiary basis to support a grant of summary judgment. Claimant has wholly failed to "make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case" (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; see Zuckerman v City of New York, 49 NY2d 557 [1980]).

The law is well settled that successive motions for summary judgment are inappropriate absent a "sufficient showing of newly discovered evidence or sufficient cause" (Pavlovich v Zimmet, 50 AD3d 1364, 1365 [2008]; Matter of Bronsky-Graff Orthodontics, P.C., 37 AD3d 946 [2007]; Detko v McDonald's Rests. of N.Y, 198 AD2d 208 [1993]). Here, no newly discovered evidence nor sufficient cause was established to warrant consideration of yet another motion for summary judgment (Hughes v City of Niagara Falls, 245 AD2d 1118 [1997]; Marine Midland Bank v Fisher, 85 AD2d 905 [1981]).

Accordingly, the motion is denied.



September 25, 2008
Saratoga Springs, New York

HON. FRANCIS T. COLLINS
Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated May 6, 2008;
  2. Affidavit of Shawn Green sworn to May 6, 2008;
  3. Undated memorandum of law of Shawn Green with exhibits;
  4. Affirmation of Michael T. Krenrich dated June 18, 2008 with exhibits;
  5. Reply of Shawn Green dated July 1, 2008.

[1]. The Court denied claimant's motion for summary judgment on his causes of action for: bailment stemming from the alleged confiscation of his personal property upon his admission to SHU on November 15, 2006; the alleged confiscation of a shower bucket following the issuance of a misbehavior report on October 16, 2006; ministerial negligence arising from the alleged failure to timely provide him with a washcloth and comb upon his admission to SHU on November 15, 2006 and the alleged failure to provide him with certain designated items of personal property upon his admission to SHU.