New York State Court of Claims

New York State Court of Claims

KING v. THE STATE OF NEW YORK, #2001-009-011, Claim No. 96696, Motion No. M-62576


Synopsis


Defendant's motion for summary judgment in this inmate assault claim was denied, based upon the court's finding that significant issues of fact exist.

Case Information

UID:
2001-009-011
Claimant(s):
JAMEL A. KING
Claimant short name:
KING
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
96696
Motion number(s):
M-62576
Cross-motion number(s):

Judge:
Nicholas V. Midey, Jr.
Claimant's attorney:
WILLIAM T. MARTIN & ASSOCIATES
BY: William T. Martin, Esq.,Of Counsel.
Defendant's attorney:
HON. ELIOT SPITZER
Attorney General
BY: Patrick B. Sardino, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant's attorney:

Signature date:
March 12, 2001
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

Defendant has brought this motion seeking an order of summary judgment dismissing the claim, and also seeks an order dismissing the claim based upon the failure of the claimant to timely serve and file his note of issue and certificate of readiness as required by a prior order of this Court.

The following papers were considered by the Court in connection with this motion:
Notice of Motion, Affirmation, with Exhibits 1,2


Affidavit in Opposition, with Exhibits 3

Reply Affirmation, with Exhibits 4

By his claim, filed July 30, 1997, claimant asserts a claim of negligence against the State. He seeks damages for injuries suffered by him as a result of an assault against him by another inmate while he was incarcerated at Auburn Correctional Facility. The assault allegedly occurred on February 2, 1997.

Defendant now brings this motion seeking an order of summary judgment dismissing the claim, contending that the claimant has not produced any evidence whatsoever to establish liability against the State for negligence in this inmate assault. Specifically, defendant relies upon deposition testimony of the claimant, in which claimant admitted that he did not know the alleged assailant prior to the incident herein, that he had no particular problems with the assailant prior to the incident, and had never informed anyone at the correctional facility prior to the incident that he had any problems with his assailant.

Summary judgment is the procedural equivalent of a trial (Andre v Pomeroy, 35 NY2d 361) and should be granted only when it has been established that there is no triable issue (Moskowitz v Garlock, 23 AD2d 943). The role of the Court, therefore, on a motion for summary judgment is not to resolve material issues of fact, but instead is to determine whether any such issues exist (Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395). If such material issues of fact exist, the motion for summary judgment must be denied (Rotuba Extruders v Ceppos, 46 NY2d 223).

With reference to this claim, it is well settled that the State must provide inmates with reasonable protection against foreseeable risks of attack by other inmates (Flaherty v State of New York, 296 NY 342). The State, however, is not an insurer of an inmate's safety, and the mere fact that an assault occurred does not give rise to an inference of negligence (Padgett v State of New York, 163 AD2d 914, lv denied 76 NY2d 711). By his testimony at his deposition, claimant will not be able to establish that he was a known assault risk based upon a prior history with his assailant. However, negligence claims against the State in actions involving assaults by other inmates have been established, for example, when the State had notice of an assault threat with an opportunity to intervene (Huertas v State of New York, 84 AD2d 650), or that the assailant had a prior history of assaults for which the State failed to take appropriate measures to correct (Littlejohn v State of New York, 218 AD2d 833: Wilson v State of New York, 36 AD2d 559).

As a result, it is evident that significant issues of fact exist which preclude this Court from granting summary judgment.

Defendant also seeks to have this claim dismissed based upon the failure of the claimant to serve and file his note of issue and certificate of readiness in a timely manner. Pursuant to an amended scheduling order of this Court dated May 16, 2000, claimant was directed to serve and file a note of issue and certificate of readiness on or before October 2, 2000. Claimant's attorney acknowledges that the note of issue has not been served or filed, even though the date by which this was to be accomplished has passed. Claimant's attorney states that he was unable to do so since depositions of defendant's knowledgeable witnesses had not been scheduled or completed. Pursuant to the amended order of this Court, those depositions were to be completed on or before August 1, 2000.

Prior to this motion, there was no attempt by claimant to either comply with or seek an extension of the amended scheduling order. Furthermore, there appears to have been minimal effort, at best, by claimant and/or his attorney to prepare this case for trial. Based upon this apparent lack of effort, the Court is sorely tempted to dismiss this claim for failure to comply with the amended scheduling order. Instead, in hopes that this claim may be decided on the merits, the Court will grant claimant one last extension.

Accordingly, it is

ORDERED, that Motion No. M-62576 is hereby DENIED; and it is further

ORDERED, that the deposition of defendant's knowledgeable witnesses shall be completed on or before May 15, 2001; and it is further

ORDERED, that claimant shall serve and file a note of issue and certificate of readiness on or before June 1, 2001; and it is further

ORDERED, that failure to comply with the directives contained herein shall result in the dismissal of the claim, sua sponte.


March 12, 2001
Syracuse, New York

HON. NICHOLAS V. MIDEY, JR.
Judge of the Court of Claims