New York State Court of Claims

New York State Court of Claims

DHILLON v. THE STATE OF NEW YORK, #2000-014-542, Claim No. 98407, Motion No. M-62218


Defendant's motion for summary judgment dismissing the claim is denied.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The Court of Claims does not have jurisdiction over State University of New York at Stony Brook as an entity distinct from the State of New York (see, Court of Claims Act §9). Thus, the Court sua sponte amends the caption of this application to delete that named defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

S. Michael Nadel
Claimant's attorney:
Gacovino, Lake & Associates, P.C.By: Steven D. Gacovino, Esq.
Defendant's attorney:
Newman Fitch Altheim Myers, P.C.By: Steven Bandel, Esq.
Third-party defendant's attorney:

Signature date:
December 26, 2000
New York

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read on the defendant's motion for summary judgment dismissing the claim: Notice of Motion, Affirmation in Support and Exhibits annexed, Memorandum of Law; Affirmation in Opposition and Exhibit annexed; Reply Affirmation.

The claim alleges that the claimant was injured while showering in a dormitory at the State University at Stony Brook, when a soap dish broke, apparently cutting his hand.

Defendant moves for summary judgment dismissing the claim on the ground that the condition of the soap dish was open, obvious and readily observable, and that the defendant had no notice of any allegedly defective condition.

The defendant's motion is based upon the deposition testimony of the claimant and of Frederick E. Tokash, Director of Residential Operations at State University at Stony Brook. In particular, it is asserted by counsel for the defendant that "despite the existence of many similar soap dishes at the campus, there is no evidence of any soap dishes breaking or complaints concerning the soap dishes on campus." Affirmation, Paragraph 13. In the defendant's Memorandum of Law it is likewise asserted that "there is no evidence of any previous incidents concerning similar soap dishes in other areas of the State University's campus. The examination before trial testimony of the witness on behalf of the State University is that there are at least 200 similar soap dishes throughout the State University's campus * * * . Yet there are neither records of any of those soap dishes breaking nor any complaints concerning the soap dishes on campus." Memorandum of Law, third unnumbered page.

These assertions appear to be specifically contradicted by the deposition testimony of Mr. Tokash (Examination taken April 29, 1999, annexed as Exhibit D to defendant's submission). On page 42 of his examination, he was asked: "To your knowledge, had any of the soap dishes . . . ever break apart or fall apart . . . ?" His response was: "Yes, sir." He further testified that he was aware of approximately ten such incidents. (Page 43).

Regardless of whether or not the claimant will be able to meet his burden at trial, in view of the foregoing, on this record the defendant has not met its burden on the instant motion. Alvarez v Prospect Hospital, 68 NY2d 320, 324.

"Summary judgment is a drastic remedy which ‘deprives the litigant of his day in court * * * [and therefore] should only be employed when there is no doubt as to the absence of triable issues.' [Andre v Pomeroy, 35 NY2d 361, 363; Phillips v Kantor & Co., 31 NY2d 307, 311.]" Martin v Briggs, 235 AD2d 192, 196.

Accordingly, the defendant's motion for summary judgment is denied.

The Court has not considered the claimant's request for "summary judgment against the Defendants, because of their spoliation of crucial evidence," which is unsupported. CPLR 3212(b).

December 26, 2000
New York, New York

Judge of the Court of Claims