New York State Court of Claims

New York State Court of Claims

GAGNON v. STATE OF NEW YORK, #2003-018-238, Claim No. 106972, Motion Nos. M-66665, M-66844


Synopsis


Claimant's motions for summary judgment and appointment of counsel are denied.

Case Information

UID:
2003-018-238
Claimant(s):
ROBERT D. GAGNON, JR.
Claimant short name:
GAGNON
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
106972
Motion number(s):
M-66665, M-66844
Cross-motion number(s):

Judge:
DIANE L. FITZPATRICK
Claimant's attorney:
ROBERT D. GAGNON, JR.Pro Se
Defendant's attorney:
ELIOT SPITZER
Attorney General of the State of New York
By: JOEL L. MARMELSTEIN, ESQUIREAssistant Attorney General
Third-party defendant's attorney:

Signature date:
July 14, 2003
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision
Claimant brings a motion for summary judgment (M-66665) and a separate motion


seeking an order assigning counsel to represent him (M-66844). Defendant opposes the motion

for summary judgment.

The claim, consisting of 31 pages plus a glossary of terms and medical records, alleges that defendant engaged in conduct which was intentional infliction of emotional distress and negligence. It also alleges the State demonstrated deliberate indifference to claimant's medical condition, and caused claimant to suffer cruel and unusual punishment. The substance of claimant's allegations are that despite the State's notice of his pre-existing medical problems, he was assigned as a supply clerk for housekeeping. However after accepting the duties of this position, he was required to perform various tasks not part of the duties of a supply clerk which exacerbated his health problems. Despite requests to have his work assignment changed, including a doctor's memorandum, he was forced and coerced into continuing his assignment. Claimant alleges, as a result, he suffered back pain and additional injuries. Claimant also alleges that he was further injured when the truck, in which he was riding as part of his work assignment, stopped suddenly. As a result of his injuries claimant seeks five million dollars in damages.

In support of his summary judgment motion claimant submits his affidavit along with a copy of a handwritten memorandum from S. Tracy, NA, dated December 10, 2002; a letter from Assistant Attorney General Joel L. Marmelstein to claimant indicating he enclosed copies of the Verified Answer, Discovery Demands, Demand for a Verified Bill of Particulars and authorization forms; a copy of a standard letter from the Chief Clerk of this Court advising that the claim was filed and given claim number 106972; a copy of a standard letter from the Chief Clerk of this Court advising of the date motion number M-66223 was calendared; certified mail receipt for service on the Court, dated March 31, 2003, and upon Assistant Attorney General Joel L. Marmelstein on March 31, 2003.

Claimant's summary judgment motion must be denied. Summary judgment is a drastic remedy which must only be granted where it is clear that there are no issues of fact requiring a trial (
Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 403). The party bringing a motion for summary judgment bears the burden of making a prima facie showing of entitlement to judgment as a matter of law (Winegrad v New York University Medical Ctr., 64 NY2d 851, 852). The failure to meet this burden requires a denial of the motion, regardless of the sufficiency of the opposing papers (Winegrad v New York University Medical Ctr ., 64 NY2d 851, 852).
Clearly the State has a responsibility "in the operation and management of its schools, hospitals and other institutions [to protect its confined inmates and patients] only for hazards reasonably to be foreseen, only for risks reasonably to be perceived" (
Flaherty v State of New York, 296 NY 342, 346; Barbosa v State of New York, 186 Misc 2d 926, 929). There is no evidence in admissible form before the Court indicating that the State had any prior notice of claimant's medical condition or that his pre-existing medical condition prohibited claimant from doing the work he was assigned. Nor is there any admissible evidence, only claimant's hearsay assertions, that the State reassigned claimant to the same work detail despite a doctor advising the Correctional Services officials that claimant should not be performing that work assignment. There is also no allegation that the State's actions contributed to claimant falling from a crate in the back of a truck, in which he was riding as part of his work assignment. Claimant has failed to establish that he is entitled to judgment as a matter of law.
Turning to claimant's motion seeking an order appointing an attorney to represent him pursuant to CPLR Article 11, this issue was previously addressed by this Court in a previous motion (see,
Gagnon v State of New York, Ct Cl, unpublished decision of J. Fitzpatrick, signed February 18, 2003, Claim No. 106972, Motion No. M-66223). Claimant has alleged nothing new that would warrant the Court changing its decision.
The appointment of counsel in this type of case, is not required by the constitution or by statute; it is discretionary (s
ee, Matter of Smiley, 36 NY2d 433; Stephens v State of New York, 93 Misc 2d 273). The Court will not exercise its discretion to appoint an attorney to appear without compensation in this matter (see, Matter of Smiley, 36 NY2d 433; Courtwright v State of New York, Ct. of Claims filed March 20, 1997, J. Corbett, Claim No. 95042, Motion No. M-54516). Since claimant has now been released from custody, he may be better able to locate an attorney to represent him on a contingency fee basis.
Based upon the foregoing, claimant's motions M-66665 and M-66844 are DENIED.


July 14, 2003
Syracuse, New York

HON. DIANE L. FITZPATRICK
Judge of the Court of Claims


The Court has considered the following documents in deciding these motions:


Motion No. M-66665


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


Affidavit of Robert D. Gagnon, Jr., in support with exhibits attached

thereto......................................................................................................2


Affirmation of Joel L. Marmelstein, Esquire, Assistant Attorney

General, in opposition, with exhibits attached thereto.............................3


Reply Affidavit of Robert D. Gagnon, Jr., in support .........................................4


M-66844

Notice of Motion..................................................................................................5


Affidavit of Robert D. Gagnon, Jr., in support with exhibits attached

thereto......................................................................................................6


Filed Documents:


Claim....................................................................................................................7


Answer.................................................................................................................8