New York State Court of Claims

New York State Court of Claims

BAYRON v. THE STATE OF NEW YORK, #2008-038-599, Claim No. 113686, Motion No. M-74623


Claimant's motion for summary judgment on wrongful confinement claim denied. Motion was not supported by a copy of the pleadings (CPLR 3212 [b]). Moreover, allegations in the affidavit in support of the motion and claim itself were too bare to demonstrate a prima facie case of wrongful confinement

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:
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:
June 13, 2008

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant, an inmate incarcerated at a State correctional facility, seeks compensatory damages for injuries allegedly sustained as a result of wrongful confinement. The verified claim alleges that he was held in the Special Housing Unit (SHU) at Upstate Correctional Facility beyond his scheduled release date from SHU of March 2, 2007. Claimant moves for summary judgment, and defendant opposes the motion. CPLR 3212 (b) provides in pertinent part that a motion for summary judgment “shall be supported by an affidavit, by a copy of the pleadings and by other available proof.” Claimant’s failure to include the pleadings in support of his motion requires that his motion for summary judgment be denied, regardless of the merits of the motion (see Senor v State of New York, 23 AD3d 851, 852 [3d Dept 2005]; Bonded Concrete v Town of Saugerties, 3 AD3d 729, 730 [2004], lv dismissed 2 NY3d 793 [2004]).[1]

Even assuming that claimant had included the pleadings along with his motion, the motion would still be denied. “Summary judgment is a drastic remedy that deprives a litigant of his or her day in court, and ‘it should only be employed when there is no doubt as to the absence of triable issues’” (Kolivas v Kirchoff, 14 AD3d 493 [2d Dept 2005], quoting Andre v Pomeroy, 35 NY2d 361, 364 [1974]). It is well established that a movant 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]). “To establish [a] cause of action [for unlawful confinement] the [claimant] must show that: (1) the defendant intended to confine him, (2) the [claimant] was conscious of the confinement, (3) the [claimant] did not consent to the confinement and (4) the confinement was not otherwise privileged” (Broughton v State of New York, 37 NY2d 451, 456 [1975], cert denied sub nom. Schanbarger v Kellogg, 423 US 929 [1975]; see Gittens v State of New York, 132 Misc 2d 399, 402 [Ct Cl 1986]). Claimant’s affidavit in support of the motion is so bare and wanting with respect to the elements of an unlawful confinement claim that it does not establish a prima facie entitlement to judgment as a matter of law. Further, CPLR 3212 (b) requires that an affidavit in support of claimant’s motion for summary judgment “show that there is no defense to the cause of action” and claimant’s affidavit is deficient in this regard (see New York Craniofacial Care, P.C. v Allstate Ins. Co., 11 Misc3d 1071(A) [N.Y. City Civ. Ct. 2006]; Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR 3212:15). Moreover, even were the Court to consider the verified claim as admissible proof, it is inadequate to establish prima facie entitlement to judgment as a matter of law as it fails to set forth any allegations that claimant’s confinement was “not otherwise privileged” (see Broughton v State of New York, supra).

Accordingly, it is

ORDERED, that Motion No. M-74623 is DENIED.

June 13, 2008
Albany, New York

Judge of the Court of Claims

Papers considered

(1) Verified Claim No. 113686, with exhibits, filed May 10, 2007;

(2) Verified Answer, filed June 18, 2007;

(3) Notice of Motion for Summary Judgment, filed February 19, 2008;

(4) Affidavit in Support of Motion for Summary Judgment of Victor Bayron,

sworn to January 17, 2008;

(5) Claimant’s Memorandum of Law, dated February 2008;

(6) Affirmation of Michael T. Krenrich, AAG in Opposition to Claimant’s Motion for Summary

Judgment, dated March 25, 2008.

[1]. Defendant’s contention that the motion is unsupported by an affidavit is incorrect, as claimant’s sworn affidavit is submitted with the motion papers.