New York State Court of Claims

New York State Court of Claims

TAYLOR v. THE STATE OF NEW YORK, D.O.C.S.,


MOHAWK CORR. FAC., #2009-042-517, Claim No. 111483, Motion Nos. M-76566, CM-76868, CM-77009


Synopsis


This is a motion brought by claimant for summary judgment, a cross-motion by defendant to dismiss the claim, and a cross-motion by claimant seeking to supplement the submissions on his original motion for summary judgment, an application for poor person status, seeking a reduction in his filing fee and assignment of counsel. The court is in accord with the position of the defendant that claimant’s claim fails to state a cause of action and lacks jurisdiction over the defendant. Claimant’s motion for summary judgment is denied and defendant’s cross-motion to dismiss the claim is granted. Claimant’s cross-motion insofar as it seeks to correct the omission of pleadings of claimant’s motion for summary judgment is denied as moot, in light of the court’s dismissal of the claim and claimant’s request for a reduction in filing fees was previously addressed by the court in an order signed by Presiding Judge Sise filed on October 28, 2005. The court also finds that claimant’s cross-motion insofar as assignment of counsel is concerned is denied as claimant failed to comply with the statutory notice requirement which renders this application defective.

Case Information

UID:
2009-042-517
Claimant(s):
AARON TAYLOR #87A8690
Claimant short name:
TAYLOR
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK, D.O.C.S., MOHAWK CORR. FAC.1 1.While the caption names the State of New York, D.O.C.S., and Mohawk Corr. Fac., the latter two are departments of the former. As a result, there is in fact only one defendant - the State of New York.
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
111483
Motion number(s):
M-76566
Cross-motion number(s):
CM-76868, CM-77009
Judge:
NORMAN I. SIEGEL
Claimant’s attorney:
AARON TAYLOR, PRO SE
Defendant’s attorney:
HON. ANDREW M. CUOMO
Attorney General of the State of New YorkBy: THOMAS M. TRACE, ESQ.
Third-party defendant’s attorney:

Signature date:
October 5, 2009
City:
Utica
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The court has considered the following papers on claimant’s motion for summary judgment, defendant’s cross-motion to dismiss the claim and claimant’s cross-motion to supplement his original motion and for a reduction in his filing fee and assignment of counsel:
  1. Notice of Motion, filed April 16, 2009
  2. Affidavit of Aaron Taylor, pro se, sworn to April 7, 2009
  3. Exhibits A - B, annexed to the moving papers
  4. Opposition affirmation of Thomas M. Trace, Esq., dated June 23, 2009
  5. Exhibit A, annexed to opposition affirmation
  6. Notice of Cross-Motion, made by defendant, filed June 24, 2009
  7. Affirmation of Thomas M. Trace, Esq., dated June 23, 2009
  8. Exhibits A - I, annexed to the cross-moving papers
  9. Notice of Cross-Motion, made by claimant, filed July 29, 2009
  10. Affidavit of Aaron Taylor, pro se, sworn to July 25, 2009
  11. Exhibits A - B, annexed to the cross-moving papers
  12. Affidavit of Aaron Taylor, pro se, sworn to July 25, 2009, submitted in support of poor person application
  13. "Opposition" to defendant's cross-motion, dated August 25, 2009
  14. "Affirmation" of Aaron Taylor, pro se, dated August 25, 2009

The underlying claim arises out of a 2005 disciplinary proceeding which occurred while claimant was an inmate at the Mohawk Correctional Facility. It is claimant’s contention that the disciplinary proceeding, the outcome of which was administratively reversed, was not conducted in a timely manner in accordance with the requirements of 7 NYCRR Section 251-5.1 (b), and that as a result, claimant has sustained damages.

There are three motions currently pending before the court.

In the first motion, claimant has moved for summary judgment.

The second motion is a cross-motion by defendant to have the claim dismissed pursuant to CPLR § 3211 (a) (2) and (7) on the grounds of lack of jurisdiction over the defendant and for the failure to state a cause of action.

The third motion is a cross-motion by claimant, seeking to supplement the submissions on his original motion for summary judgment (M-76566) and an application for a reduction in the amount of the court filing fee previously imposed and for assignment of counsel.

CLAIMANT’S MOTION FOR SUMMARY JUDGMENT
Defendant opposes claimant’s motion for summary judgment on the ground that claimant has failed to attach any pleadings to his motion, as required by CPLR 3212 (b).

It is unnecessary to address the merits of claimant’s motion, as the aforementioned ground for defendant’s opposition is dispositive of claimant’s motion.

CPLR Rule 3212 (b) provides, in relevant part, that:

[a] motion for summary judgment shall be supported by affidavit, by a copy of the pleadings and by other available proof, such as depositions and written admissions.


(emphasis added; see S. J. Capelin Assoc. v Globe Mfg. Corp., 34 NY2d 338).


The failure to include the pleadings in support of this motion mandates the denial of the motion (Deer Park Assoc. v Robbins Store, 243 AD2d 443; Niles v County of Chautauqua, 285 AD2d 988; Gallagher v TDS Telecom, 280 AD2d 991).

DEFENDANT’S CROSS-MOTION TO DISMISS THE CLAIM
Before discussing defendant’s cross-motion, a review of the relevant facts is in order. On July 20, 2005 a misbehavior report was issued which alleged that claimant refused a direct order (Rule 106.10), was out of place (Rule 109.10), and lost a state-issued razor (Rule 116.10). Claimant was transferred to the Special Housing Unit and a disciplinary hearing ensued. Claimant called no witnesses at the hearing and in fact pled guilty to refusing a direct order.

The hearing, which had commenced on July 26, 2005 was adjourned and did not recommence until August 16, 2005. Claimant was found guilty for refusing a direct order and losing the razor. A thirty-day loss of privileges sentence was imposed; claimant appealed on the ground that the hearing was not timely conducted. The matter was reversed and expunged.

Defendant contends that in order for claimant to prevail on the claim that he was damaged by this untimely disciplinary proceeding, it is incumbent upon claimant to be able to prove that but for the regulatory violation, the hearing’s outcome would have been different. It is defendant’s contention that the outcome in this case - to wit, claimant’s guilt and imposition of discipline - would have been the same (for a variety of factual reasons, not the least of which is claimant’s guilty plea to refusing a direct order). It is defendant’s position that “[s]ince the Claim does not allege, or support the contention, that the hearing’s outcome would have been different but for the timeliness violation, the Claim fails to state a cause of action, lacks jurisdiction over the Defendant, and should be dismissed.”

Claimant’s opposition focuses on the failure of the disciplinary proceeding to be completed in fourteen days, and does not dispute defendant’s other allegations as to the merits of the disciplinary charges against claimant.

The court is in accord with the position of the defendant. The law is established that for breach of a ministerial duty, liability may be imposed, but such liability is contingent upon proof that the violation of the regulation caused actual injury to the claimant inmate (Rivera v State of New York, UID #2006-028-008, Claim No. 102781 [Ct Cl, Feb. 8, 2006], Sise, P.J., citing Vasquez v State of New York, 10 AD3d 825 [3d Dept 2004] and Henderson v Coughlin, 163 Misc 2d 20 [Ct Cl 1994]).

Here, the defendant does not dispute the procedural violation, but contends that the guilty plea to the refusal to obey an order, and the facts supporting the finding of the lost state-issued razor support the discipline imposed, and thus, claimant sustained no actual injuries as a result of the procedural violation.

Claimant’s guilty plea to one of the charges, and the facts surrounding the loss of the razor, as set forth in the record, compel the grant of this cross-motion.

CLAIMANT’S CROSS-MOTION TO SUPPLEMENT THE FIRST MOTION, AND FOR REDUCTION OF FILING FEES AND ASSIGNMENT OF COUNSEL

Claimant’s cross-motion, insofar as it seeks to correct the omission of pleadings on claimant’s motion for summary judgment is denied as moot, in light of the court’s dismissal of the claim. However, the court, in reviewing the pleadings, sees nothing, which if considered by the court, would have prompted the grant of the summary judgment or the denial of defendant’s motion to dismiss.

As for claimant’s request for reduction of the filing fee, his poor person application was already addressed by the court in an order, signed by Presiding Judge Sise, and filed October 28, 2005. There is no demonstrably significant change of circumstances which would prompt a reconsideration of the aforementioned order, and thus this portion of claimant’s cross-motion is also denied.

Turning to claimant’s request for the assignment of counsel in this damages claim, CPLR 1101 (c) requires that “notice [of such application] shall also be given to the county attorney in the county in which the action is triable. . .” The notice to the county is required because the payment of certain fees and expenses attendant to the grant of poor person status may be a financial charge to the county. The failure to comply with this notice provision renders an application defective (Sebastiano v State of New York, 92 AD2d 966; Hines v State of New York, UID No. 2005-028-534, Claim No. 110624, Motion No. M-69991, June 21, 2005, Sise, P.J.). No proof whatsoever has been offered by claimant to demonstrate that notice was provided to the appropriate county attorney. This failure of claimant to comply with the statutory notice requirement renders this application defective, and it is therefore denied.

However, even assuming proper notice, the application would be denied. Courts generally decline to appoint counsel in civil matters (see In re Smiley, 36 NY2d 433, 439), even in those which arise out of inmate disciplinary proceedings (Senor v Behrle, UID No. 2008-038-605, Claim No. 114626, Motion No. M-744, June 30, 2008, DeBow, J., affd on other grounds, 63 AD3d 1454; Johnson v State of New York, UID No. 2009-044-501, Claim No. 112759, Motion No. M-75672, January 13, 2009, Schaewe, J.)

Furthermore, CPLR 1101 (a) allows the court to consider the merits of the claimant’s contentions in its review of an application for poor person status. Here, as evidenced by the court’s ruling on defendant’s cross-motion to dismiss the claim, the court finds that the claim is without merit. It would be an improvident exercise of discretion to appoint counsel for a claim that is patently without merit.

In sum, claimant’s motion for summary judgment is denied, claimant’s cross-motion to supplement his motion for summary judgment and for a reduction of the filing fee and assignment of counsel is denied, and defendant’s motion to dismiss the claim is granted.


October 5, 2009
Utica, New York

HON. NORMAN I. SIEGEL
Judge of the Court of Claims