|Claimant short name:||PIERRE-PAUL|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||James J. Lack|
|Claimant's attorney:||Law Offices of E. Michael Rosenstock, P.C.
By: E. Michael Rosenstock, Esq.
|Defendant's attorney:||Andrew M. Cuomo, New York State Attorney General
By: Kimberly A. Kinirons, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||September 24, 2010|
|See also (multicaptioned case)|
This is a claim by Eddy Pierre-Paul (hereinafter "claimant") for damages due to his incarceration beyond the sentence of the court. The extended incarceration occurred between October 15, 2007 and January 17, 2008. The incarceration took place at the Nassau County Correctional Center, East Meadow, New York.
On September 12, 2007, claimant pled guilty to two misdemeanor charges. The judge sentenced claimant to ninety days incarceration with credit for time served. The securing order, prepared by defendant's employee, mistakenly reflected the sentence as nine months. Claimant moves this Court for summary judgment on the question of liability(1) .
Defendant opposes the motion.
Summary judgment is a drastic remedy which deprives a party of its day in court and should not be granted where there is any doubt as to the existence of a material issue of fact (Moskowitz v Garlock, 23 AD2d 943; Epstein v Scally, 99 AD2d 713). The Court's function is to determine if an issue exists. In doing so, the Court must examine the proof in a light most favorable to the party opposing the motion. Summary judgment may only be granted if movant provides evidentiary proof in admissible form to demonstrate that there are no questions of fact (Winegrad v New York Univ. Med. Center, 64 NY2d 851; Wanger v Zeh, 45 Misc 2d 93, aff'd 26 AD2d 729). Once the movant has demonstrated a prima facie entitlement to summary judgment as a matter of law, the burden shifts to the opposing party to submit evidentiary proof in admissible form sufficient to create an issue of fact or demonstrate an acceptable excuse for his failure to submit such proof (Alvarez v Prospect Hosp., 68 NY2d 320). Mere conclusions, speculation or expressions of hope are insufficient to defeat the motion (Amatulli v Delhi Constr. Corp., 77 NY2d 525).
If an action or non-action is ministerial in nature the State may be subject to liability for negligent acts (Lauer v City of New York, 95 NY2d 95). In Lauer, the Court of Appeals defined a ministerial act as ". . . conduct requiring adherence to a governing rule, with a compulsory result" (Lauer at 99).
From the evidence and arguments presented, it is clear no significant issues of fact exist to prevent the Court from granting summary judgment.
Based upon the foregoing, claimant's motion for summary judgment on the question of liability is granted.
September 24, 2010
Hauppauge, New York
James J. Lack
Judge of the Court of Claims
1. The following papers have been read and considered on claimant's motion: Notice of Motion for Summary Judgment dated April 13, 2010 and filed April 15, 2010; Affidavit in Support of Motion for Summary Judgment of Claimant Eddy Pierre-Paul with annexed Exhibits A-E sworn to April 13, 2010 and filed April 15, 2010; Memorandum of Law in Support of Claimant's Motion for Partial Summary Judgment of E. Michael Rosenstock, Esq. received April 15, 2010; Affirmation in Opposition to Motion for Partial Summary Judgment of Kimberly A. Kinirons, Esq. with annexed Exhibits A-C dated May 18, 2010 and filed May 19, 2010; Affirmation in Reply of E. Michael Rosenstock, Esq. dated May 25, 2010 and filed May 27, 2010.