New York State Court of Claims

New York State Court of Claims

LESANE v. THE STATE OF NEW YORK, #2001-009-048, Claim No. 102912, Motion No. M-63687


Claimant's motion for summary judgment denied.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

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

Claimant's attorney:
Defendant's attorney:
Attorney General
BY: Joel L. Marmelstein, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant's attorney:

Signature date:
October 11, 2001

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant has brought this motion seeking an order granting him summary judgment.

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

Affirmation in Opposition, with Exhibit 3

Claimant's Affirmation in Response[1] 4

In an amended claim[2] filed April 23, 2001, claimant seeks damages for assault and trespass, based upon the alleged conduct of Correction Officer R. Dietterich on June 6, 2000 and June 14, 2000, while claimant was incarcerated at Gouverneur Correctional Facility. The amended claim also alleges a violation of claimant's State Constitutional rights based upon the alleged conduct of Correction Officer Dietterich on July 14, 2000. In its verified amended answer, defendant has denied these allegations. Claimant now seeks summary judgment on the issue.

In any application for summary judgment, the moving party bears a heavy burden in establishing that he or she is entitled to judgment as a matter of law. (Andre v Pomeroy, 35 NY2d 361). Summary judgment is a drastic remedy, depriving a party of its day in Court, and therefore should not be granted where there is any doubt as to existence of a material issue of fact (Moskowitz v Garlock, 23 AD2d 943). In a motion for summary judgment, the Court must determine if any such material issues of fact exist. In doing so, the submitted proof is examined in a light most favorable to the party opposing the motion (Currier v Wiltrom Associates, Inc., 250 AD2d 956). Summary judgment may only be granted if the movant provides evidentiary proof in admissible form that there are no questions of fact (Winegrad v New York Univ. Med. Center, 64 NY2d 851). Once the movant has established a prima facie entitlement to summary judgment as a matter of law, the burden then shifts to the opposing party to provide evidentiary proof in admissible form which is sufficient to create an issue of fact to be resolved at trial (Alvarez v Prospect Hosp., 68 NY2d 320).

In support of his motion for summary judgment, claimant relies upon the affidavits of inmates Cruz and Felder (see Exhibits B and C to Items 1,2), who supposedly were eyewitnesses to the events which form the basis of this claim. In opposition, defendant has submitted its response to Claimant's First Set of Interrogatories, which consist of answers provided by Correction Officer Dietterich, made under oath. In his response, Correction Officer Dietterich specifically denies those allegations of claimant which form the basis of his claim.

It is therefore readily apparent that significant and material issues of fact exist, which can only be resolved at a trial where the Court can fully consider the testimony and demeanor of the different witnesses involved. Summary judgment is clearly inappropriate in the context of this claim. The fact that defendant has not propounded any affirmative defenses in its amended answer, and the fact that the original claim made by claimant alleging assault and trespass has survived defendant's cross-motion to dismiss, cannot in any way be deemed a resolution in claimant's favor of the material issues of fact which exist in this claim.

Accordingly, it is

ORDERED, that Motion No. M-63687 is hereby DENIED.

October 11, 2001
Syracuse, New York
Judge of the Court of Claims

[1] This "Affirmation" was unsigned by claimant, but the Court has considered its contents in the disposition of this motion.
[2] In his original claim, claimant asserted causes of action sounding in assault, trespass, and the intentional infliction of emotional distress. By a Decision and Order dated March 30, 2001, this Court dismissed the cause of action alleging the intentional infliction of emotional distress and preserved the causes of action alleging assault and trespass. This Decision and Order also permitted claimant to serve and file an amended claim alleging a violation of his State Constitutional rights (see Decision and Order to Motion Nos. M-62778, M-62779, CM-62896).