Summary judgment motion by inmate claimant proceeding pro se denied. Claimant did not establish entitlement to judgment as matter of law on causes of action for wrongful confinement, medical malpractice or negligence.
|Claimant short name:||VELEZ|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||THOMAS H. SCUCCIMARRA|
|Claimant's attorney:||GEORGE VELEZ, PRO SE|
|Defendant's attorney:||HON. ANDREW M. CUOMO, NEW YORK STATE
BY: J. GARDNER RYAN, ASSISTANT ATTORNEY GENERAL
|Third-party defendant's attorney:|
|Signature date:||February 5, 2010|
|See also (multicaptioned case)|
The following papers were read and considered on claimant's motion [M-77120]:
1-4 Notice of Motion for a Summary Judgment in Lieu of Complaint; Affidavit in Support of Notice of Motion for Summary Judgment in Lieu of Complaint by George Velez, Claimant; Notice to Motion of Prior Good Faith Effort; Affirmation of Prior Good Faith Effort by George Velez, Claimant
5 Affirmation by J. Gardner Ryan, Assistant Attorney General and attached exhibits
6-8 Filed papers: Claim; Velez v State of New York, UID # 2008-030-016, Claim No. 111537( Scuccimarra, J., June 6, 2008); Velez v State of New York, UID # 2008-030-559, Claim No. 111537, Motion No. M-75309 (Scuccimarra, J., September 16, 2008)
In his filed claim Mr. Velez seeks damages for alleged wrongful confinement, inadequate medical care and for the loss of or damage to personal property following his confinement on disciplinary charges. After an initial dismissal on jurisdictional grounds [see Velez v State of New York, UID # 2008-030-016, Claim No. 111537( Scuccimarra, J., June 6, 2008)], the claim - at least with respect to the causes of action for wrongful confinement and negligence or malpractice - was restored by the Court [see Velez v State of New York, UID # 2008-030-559, Claim No. 111537, Motion No. M-75309 (Scuccimarra, J., September 16, 2008)]. The personal property loss claims are not before the court because they were dismissed.
Claimant now moves for summary determination of his lost or damaged property causes of action, as well as negligence, illegal confinement, and lack of proper medical care. [Affidavit in Support of Notice of Motion for Summary Judgment in Lieu of Complaint by George Velez, Claimant]. He also appears to be moving to compel discovery, although the motion was not calendared by the clerk, nor does the motion appear to contain a copy of any contested demands.
As the party seeking summary judgment [Civil Practice Law and Rules §3212], claimant must make a prima facie showing of entitlement to judgment as a matter of law, by offering sufficient evidence in admissible form to eliminate any material issues of fact from the case. Cox v Kingsboro Medical Group, 88 NY2d 904 (1996); Winegrad v New York Univ. Med. Center, 64 NY2d 851 (1985); Zuckerman v City of New York, 49 NY2d 557 (1980). Failure to make a prima facie showing requires denial of summary judgment, regardless of the sufficiency of the opposing papers. Winegrad v New York Univ. Med. Center, supra at 851, 853. The burden does not shift to the opposing party to itself produce evidentiary proof in admissible form sufficient to demonstrate the existence of material issues of fact which require a trial of the action, unless a sufficient showing is made by the movant in the first place. Zuckerman v City of New York, supra at 562.
Based on the claimant's submissions on the motion, he has not shown his entitlement to judgment as a matter of law on the remaining causes of action for wrongful confinement, medical malpractice or negligence. For example, to establish a prima facie case of wrongful confinement, a "species" of the tort of false imprisonment, [Gittens v State of New York, 132 Misc2d 399, 407 (Ct Claims 1986)], a claimant must show ". . . (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). The quasi-judicial acts of correction employees taken in furtherance of authorized disciplinary measures are entitled to absolute immunity. Arteaga v State of New York, 72 NY2d 212, 219-220 (1988). There should be a showing that defendant acted inconsistently with its own rules and regulations, or otherwise acted outside the sphere of privileged actions. The fact that charges were ultimately dismissed does not give rise to a cognizable cause of action when there is no evidence defendant acted inconsistently with its own rules and regulations. Merely repeating the facts asserted in the claim does not entitle claimant to a summary finding on his cause of action because it must be shown, at least prima facie, by proof in admissible form.
Similarly, with regard to his claims of inadequate medical care, again claimant repeats conclusory allegations that he was not treated properly, rather than establishing by proof in admissible form that medical personnel deviated from accepted medical practice when treating claimant.
Finally, if the papers concerning "good faith" noted above were intended as a motion to compel disclosure, claimant has not established the prerequisite showing that any discovery demands were served on defendant and not responded to in some fashion. Civil Practice Law and Rules §3124.
Based on the foregoing, claimant's motion [M-77120] is in all respects denied.
February 5, 2010
White Plains, New York
THOMAS H. SCUCCIMARRA
Judge of the Court of Claims