New York State Court of Claims

New York State Court of Claims

SPELL v. STATE OF NEW YORK , #2003-018-219, Claim No. 104713, Motion No. M-66080


Synopsis


Claimant's motion for summary judgment denied as there are many material issues of fact which preclude the granting of claimant's motion.

Case Information

UID:
2003-018-219
Claimant(s):
LIONEL SPELL
Claimant short name:
SPELL
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
104713
Motion number(s):
M-66080
Cross-motion number(s):

Judge:
DIANE L. FITZPATRICK
Claimant's attorney:
ROEMER WALLENS & MINEAUX, LLPBy: MATTHEW J. KELLY, ESQUIRE
Defendant's attorney:
ELIOT SPITZER
Attorney General of the State of New York
By: G. LAWRENCE DILLON, ESQUIREAssistant Attorney General
Third-party defendant's attorney:

Signature date:
May 13, 2003
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision
Claimant brings a motion seeking summary judgment. Defendant opposes the motion.


Claimant served a notice of intention upon the attorney general dated February 7, 2001. Claimant then filed and served a claim, dated May 30, 2001, upon the attorney general asserting the following:
"On or about December 23, 2000, at about 4:45 P.M., I,

Lionel Spell [#94-A- 7938] received severe injuries when a

food cart rolled off of a truck and fell on to [sic] me. After the

food cart was lifted off of me, I found myself unable to walk

and in a lot [sic] of pain. I was taken to the Mid-State Corr. [sic]

Facility's Infirmary [sic] by Facility [sic] van. The R.N.

[registered nurse] on duty at this time was Ms. Barbara Hackett,

who put me on 24 hrs. [sic] of medical observation. This Nurse

[sic] later tried to make me stand-up [sic] and walk, at which

time it was learned that I was experiencing alot [sic] of physical

pain. This nurse then called the Doctor-on-Call [sic] for

permission to send me to the Hospital [sic] For [sic] X-Rays [sic].

At about 9:00 P.M. of [sic] December 23, 2000, I was sent to

Saint Lukes [sic] Memorial Hospital Center. Up until this time,

I had received no medication for the pain nor was I given any

physical examination for my medical complaint. After X-Rays [sic]

at St. Lukes [sic] Hospital, it was learned the [sic] I had a [sic]

broken my hip and pelvis areas. I was then given medication

for the pain I was experiencing. I was thereafter, admitted to

St. Lukes [sic] Hospital. It was later determined that the food

cart was about 500 lbs."

Claimant's bill of particulars asserts that the defendant was negligent in failing to provide a safe premise for claimant to work, in failing to provide proper equipment, in failing to provide proper safety measures for the work being performed, and by failing to provide proper supervision.

In support of his position that he is entitled to summary judgment, claimant submits his notice of intention, the claim, defendant's answer, the deposition transcripts of Correction Officer Ralph Luce, who was present at the time claimant was injured, Sergeant Timothy Corey, who was working the shift during which claimant was injured and who received Correction Officer Luce's report, the report of David Scalzo, a cook, who was present when claimant was injured, and also attached is claimant's deposition transcript. In addition, claimant submits the affidavits of Spartacus Brown, an inmate who was working as a nurse's aide the evening claimant was injured, Timothy Wilson, an inmate who did not witness the incident, but saw claimant after the food cart fell on him, Clarence Miller, an inmate assisting claimant that evening who witnessed the incident, and Vincent Everett, the inmate who was pushing the food cart in the truck onto the truck lift.

It is clear from reviewing the submitted documents that there are several factual disputes as to the specifics of how the food cart fell off the truck, the condition of the truck lift and whether it was functioning properly, the condition at the location of the incident, why claimant did not move out of the way, and what communication occurred between the individuals involved. Claimant, inmate Everett, and Correction Officer Luce all have materially differing versions of the events that occurred.

It is not the place of the Court on a motion for summary judgment to determine which witness account is accurate (
See, Knepka v Tallman, 278 AD2d 811; Furlong v Storch, 132 AD2d 866, 868). Summary judgment, as is often said, is a drastic remedy which should only be granted where there are no issues of fact and the claim can be decided as a matter of law (Sillman v Twentieth Century-Fox Film, Corp., 3 NY2d 395). Here, there are many material issues of fact which preclude granting summary judgment.
Accordingly, claimant's motion is DENIED.


May 13, 2003
Syracuse, New York
HON. DIANE L. FITZPATRICK
Judge of the Court of Claims


The Court has considered the following documents in deciding this motion:

Notice of Motion....................................................................................................1

Affidavit of Matthew J. Kelly, Esquire, in support with all exhibits

attached thereto...........................................................................................2


Affirmation of G. Lawrence Dillon, Esquire, Assistant Attorney

General, in opposition.................................................................................3

.