That branch of defendant's motion for renewal was granted as it was not served with the same motion papers that were filed with the Court. On renewal, claimant's motion for partial summary judgment on his claim for excessive force was denied.
|Claimant(s):||WILLIAM H. BROOKS|
|Claimant short name:||BROOKS|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||FRANCIS T. COLLINS|
|Claimant's attorney:||William H. Brooks, Pro Se|
|Defendant's attorney:||Honorable Andrew M. Cuomo, Attorney General
By: Michele M. Walls, Esquire
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||August 25, 2010|
|See also (multicaptioned case)|
Defendant moves to reargue and renew the claimant's prior motion for partial summary judgment on the issue of liability pursuant to CPLR 2221.
By Decision and Order dated April 20, 2010, this Court found that claimant, a pro se inmate, established his prima facie entitlement to judgment as a matter of law on the issue of liability relating to his claim for excessive force. In so holding, the Court found that claimant established through the submission of proof in admissible form that he was beaten by correction officers without provocation and that the beating continued long after the claimant was restrained and placed face down on the floor. The proof relied upon in rendering the decision consisted of claimant's detailed statement of the beating as set forth in his Claim For Damages, which was incorporated by reference into the claim and reaffirmed in his affidavit submitted in support of the motion. In opposition to the motion, defendant failed to dispute claimant's allegations with proof in admissible form, taking the position that claimant had not made a prima facie showing of his entitlement to the relief sought. A motion to reargue is addressed to the sound discretion of the Court and requires the moving party to demonstrate that the Court overlooked or misapprehended matters of fact or misapplied existing law to the facts presented (see, CPLR 2221 [d] ; Peak v Northway Travel Trailers, 260 AD2d 840 ; Spa Realty Assoc. v Springs Assoc., 213 AD2d 781 ). Such a motion does not serve as a vehicle to permit the unsuccessful party to argue once again the very questions previously decided (see, Foley v Roche, 68 AD2d 558, 567 , lv denied 56 NY2d 507 ). Defendant contends that the Court overlooked or misapprehended the fact that the claimant did not support the motion with all of the pleadings as required by CPLR 3212 (b) and cites those cases from this Court as well as others which stand for the proposition that the failure to submit all of the pleadings in support of summary judgment requires denial of the motion regardless of the sufficiency of the proof submitted in opposition (see e.g. Lamage v State of New York, UID # 2008-015-056, Claim No. 112352 [Ct Cl, July, 21, 2008] Collins, J.; Welton v Drobnicki, 298 AD2d 757 ). While this is undoubtedly an accurate statement of the law, defendant never raised this argument in opposition to the motion and the Court was therefore unaware of the defendant's claim that it was not served with the pleadings as part of claimant's motion. Given the fact that the motion filed with the Court included all of the pleadings as required by CPLR 3212 (b), defendant's argument that the Court overlooked matters of fact, which the defendant failed to raise, is insufficient to support the motion to reargue.
Defendant also contends that claimant failed to establish his prima facie entitlement to summary judgment, citing, inter alia, Spirles v State of New York (Claim No. 114139, Motion No. M-77723 [Ct Cl, April 30, 2010] Schaewe, J.) for the general proposition that a claimant alleging excessive force must demonstrate that the force used was unreasonable under the particular circumstances involved. In denying claimant's motion for summary judgment in Spirles, Judge Schaewe specifically noted that "claimant's affidavit does not recite any evidentiary facts of the alleged assault. He merely states that the attack was unprovoked and points out apparent inconsistencies in the written reports." Here, in contrast, claimant's Claim For Damages sets forth in great detail the circumstances of the alleged assault which, according to the claimant, continued after the claimant was restrained and placed face down on the floor. While the use of force is authorized under limited circumstances such as in self defense, to suppress a revolt or insurrection or to maintain order (see Correction Law § 137 ), none of these circumstances were implicated by the claimant's unrefuted version of the assault. Unlike the facts in Spirles, claimant established his cause of action sufficiently to warrant judgment in his favor as a matter of law. The burden therefore shifted to the defendant to produce sufficient proof in admissible form to establish the existence of material issues of fact requiring a trial (Alvarez v Prospect Hosp., 68 NY2d 320 ). This it failed to do. In opposition to the claimant's motion, defendant submitted only the affirmation of an attorney without personal knowledge of the underlying facts. Having failed to submit proof sufficient to require a trial of any issue of fact, partial summary judgment on the issue of liability was required. Defendant's contention that the Court overlooked or misapprehended matters of fact or law is therefore misplaced. That branch of defendant's motion seeking reargument is denied.
Pursuant to CPLR 2221 (e) a motion for leave to renew must "be based upon new facts not offered on the prior motion that would change the prior determination or shall demonstrate that there has been a change in the law that would change the prior determination" and "contain reasonable justification for the failure to present such facts on the prior motion" (see also 2 N. St. Corp. v Getty Saugerties Corp., 68 AD3d 1392 ; Tibbits v Verizon N.Y., Inc., 40 AD3d 1300, 1302-1303 ; Wahl v Grippen, 305 AD2d 707, 707 ; Cippitelli v County of Schenectady, 307 AD2d 658, 658 ). In support of its motion to renew defendant submits a certified copy of the transcript of claimant's Tier III hearing on disciplinary charges brought against him following the incident underlying the claim (defendant's Exhibit E). The transcript indicates claimant was charged with an assault on staff, violent conduct and refusing a direct order. He pled guilty to violent conduct and assault on staff charges, admitted that his behavior was "outlandish" and requested forgiveness from the correction officer involved (defendant's Exhibit E, p. 4). This newly submitted evidence raises questions of fact regarding whether the force used by the correction officer involved was reasonable under the circumstances.
Defense counsel also established a reasonable justification for not submitting this evidence in opposition to the prior motion. Given defense counsel's assertion that the motion papers served upon the defendant failed to include the claim, which included the Claim For Damages upon which the Court relied in rendering its Decision and Order, there appears to be a reasonable basis for counsel's de minimis statement in her affirmation in opposition that "to the extent claimant's motion seeks summary judgment, claimant has not made a prima facie showing that he is entitled to this relief" (affirmation of Michele M. Walls dated February 19, 2010, ¶ 13).
Based on the foregoing, that branch of defendant's motion requesting renewal is granted, the Decision and Order dated April 20, 2010 is vacated, and claimant's motion for partial summary judgment on the issue of liability is denied. That branch of defendant's motion requesting reargument is denied.
August 25, 2010
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims
The Court considered the following papers: