New York State Court of Claims

New York State Court of Claims

OTERO v. THE STATE OF NEW YORK, #2002-011-589, Claim No. 106145, Motion No. M-65403


Synopsis


Claimant's motion for summary judgment asserting a cause of action for negligence is denied.

Case Information

UID:
2002-011-589
Claimant(s):
EFRAIN OTERO, DIN 01 A 4641
Claimant short name:
OTERO
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
106145
Motion number(s):
M-65403
Cross-motion number(s):

Judge:
THOMAS J. McNAMARA
Claimant's attorney:
Efrain Otero, Pro Se
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Kevan J. Acton, Esq., Assistant Attorney General
Third-party defendant's attorney:

Signature date:
September 10, 2002
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant has moved for summary judgment in this action in which he asserts a cause of

action for negligence.

The proponent of a motion for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact (Winegrad v New York Univ. Med. Center, 64 NY2d 851, 853).

The claim is based on allegations that claimant was injured when a squat rack in the gym at Franklin Correctional Facility collapsed. To establish a prima facie case of negligence the injured party must demonstrate that the defendant either created the condition which caused the accident, or had actual or constructive notice of the dangerous condition and a reasonable time within which to correct it or warn about its existence (Kraemer v K-Mart Corp., 226 AD2d 590).

Claimant has not set forth in his affidavit in support of the motion any facts to establish a prima facie showing of negligence. The reference to res ipsa loquitur is also insufficient as it is not supported by a factual basis establishing that the elements warranting application of the doctrine are present (see Ladd v Hudson Valley Ambulance Service, 142 AD2d 17). In addition, the allegations in the verified claim are also conclusory and are as well insufficient to establish a prima facie case of negligence. Accordingly, the motion is denied.



September 10, 2002
Saratoga Springs, New York

HON. THOMAS J. MCNAMARA
Judge of the Court of Claims


Papers Submitted:

1. Notice of Motion dated June 18, 2002
2. Affidavit in Support sworn to the 18th day of June, 2002
3. Memorandum of Law submitted by Efrain Otero dated June 18, 2002
4. Affirmation in Opposition of Kevan J. Acton, Esq. dated June 24, 2002