2) Affirmation in Opposition of Andrew F. Plasse, Esq., filed April 21, 2004
with annexed Exhibits A-B and Affidavit in Opposition of Gregory Brown
FILED PAPERS: Claim and Answer.
Gregory Brown (Claimant) at all times relevant an inmate at Mid-State
Correctional Facility alleges that he suffered injury while on a work site
scraping a ceiling. Claimant asserts that due to an insufficient number of
ladders he was directed to use a chair which broke causing Claimant to fall and
suffer an injury. Defendant has moved for summary judgment dismissing the Claim
asserting that the work site was not within the control of the Defendant and
Claimant has opposed the motion, contending that there are material questions of
The following recitation of facts is based upon the Court's review of the
papers submitted in connection with the instant motion. On September 22, 1999
Claimant was an inmate at Mid-State Correctional Facility and was a member of an
outside crew that performed services in the community. For a period of time the
crew was being transported in a DOCS van to the Margaret Reaney Memorial Library
(Library) in St. Johnsville, Montgomery County, New York where they performed
various tasks both inside and outside the building as part of a renovation
project. At the Library site, the crew received their instructions from the
sole correction officer who accompanied them. The correction officer received
the work instructions from a civilian on site. Each day the crew returned to
Mid-State Correctional Facility. The tools to perform the various task were
provided by the Library. There were no ladders provided at the site and the
crew stood upon wooden chairs or upon wooden chairs and a plank used to create a
scaffold to reach the ceiling. For approximately three weeks before the
accident, Claimant had been performing prep work without incident using the
chairs to reach the ceiling. On September 22, 1999, Claimant was assigned by a
correction officer to scrape a ceiling in the Library in preparation for
painting. The Claimant used an armless, wooden chair to reach the ceiling. The
chair toppled as Claimant shifted his weight causing Claimant to fall.
Claimant made an oral report of the accident to the correction officer who was
supervising the work crew.
The rule governing summary judgment is well established: "The proponent of a
summary judgment motion must make a prima facie showing of entitlement to
judgment as a matter of law, tendering sufficient evidence to eliminate any
material issues of fact from the case" (Winegrad v New York University
Medical Center, 64 NY2d 851, 853), and such showing must be made "by
producing evidentiary proof in admissible form" (Zuckerman v City of New
York, 49 NY2d 557, 562). "[R]egardless of the sufficiency of the opposing
papers", in the absence of admissible evidence sufficient to preclude any
material issue of fact, summary judgment is unavailable (Ayotte v
Gervasio, 81 NY2d 1062, 1063, quoting Alvarez v Prospect
Hosp., 68 NY2d 320, 324). Summary judgment should not be granted where
there is any doubt as to the existence of a material issue of fact (Sillman v
Twentieth Century-Fox Film Corp., 3 NY2d 395, 404; Moskowitz v
Garlock, 23 AD2d 943; Epstein v Scally, 99 AD2d 713). The Court's
function is to determine if an issue exists. In doing so, the Court must
examine the proof in a light most favorable to the party opposing the
It is well settled that when the State, through its correctional authorities,
directs an inmate to participate in a work program during incarceration, it owes
the inmate a duty to provide a reasonably safe work place with reasonably safe
equipment to work with (Martinez v State of New York, 225 AD2d 877;
Kandrach v State of New York, 188 AD2d 910). Although inmates who are
injured while working in correctional facilities are not entitled to the full
protection afforded other workers by the Labor Law (see D'Argenio v Village
of Homer, 202 AD2d 883) they are entitled to a reasonably safe work place
(Kandrach v State of New York, supra) and they are entitled to
proper and appropriate instruction and supervision (Oakley v State of New
York, 38 AD2d 998, affd 32 NY2d 773).
An inmate in a work release program is in a different position than an inmate
working in the correctional facility, or at the direction of the State, or an
inmate in another temporary release program, i.e., community services program
(see D'Argenio v Village of Homer, supra at 884-885).
Instead, under participation in a work release program, the inmate is an
employee of the private employer (see Gress v State of New York,
157 AD2d 479; see also Correction Law §178) and is afforded the
protection of the Labor Law statutes (Correction Law §858; Callahan v
State of New York, 19 AD2d 437, affd 14 NY2d 665; D'Argenio v
Village of Homer, supra at 884-885). The State does not have any
duty or obligation to inspect and ensure the safety of the possible job sites
for inmates in a temporary release program (Gress v State of New York,
Against this legal backdrop, Defendant has moved for summary judgment arguing
that "this work site is no different than a typical work release work site."
(Dillon Affirmation ¶14). It is unclear to the Court whether
Defendant is arguing that Claimant is in a work release program or whether the
law applicable to work release programs should be extended to the instant facts.
Assuming arguendo Defendant is urging the Court to find Claimant to be
in a "work release program" as defined by the Correction Law the motion must be
denied. Defendant has failed to establish that Claimant was in such a program.
Moreover, the letter from the Inmate Records Coordinator submitted in support of
the motion which states " he [Claimant] was on an outside crew and traveled to
outside community work sites" (Dillon Affirmation Exhibit J) is
sufficient to raise a material question of fact, regarding Claimant's status.
Were the Court to shift the burden to Claimant, which it does not, Claimant's
affidavit which denies participation in a "work release program" and avers that
his pay came not from the municipality but the State likewise raises a material
question of fact regarding his status sufficient to defeat the summary judgment
motion. Claimant's reference to the DOCS regulations which identify the
correctional facilities authorized to have work release programs - Mid-State CF,
where Claimant was housed, is not listed - also raises a material question of
fact as to his status.
Turning to the argument that this work site should be found to be no different
than a typical work release worksite, the Defendant has provided no legal
authority for the Court to do so. Rather, the Defendant's submissions,
particularly the deposition transcript of Claimant, raise material questions of
fact regarding the direction and supervision of the work. Defendant's
characterization of the testimony that the correction officer "merely" provided
transportation to and from the work site and "simply restated" the directions
(Dillon Affirmation ¶13) is belied by Claimant's deposition
testimony. For example:
Q. And any questions that you had concerning the carrying out of your duties
were offered to the officer?
A. That's right.
(See Exhibit "H" annexed to Defendant's motion papers; i.e. Claimant's
deposition at page 16 lines 3 through 19)
The foregoing testimony also raises material questions of fact regarding how
came to use the wooden chair provided by the Library as a ladder.
On this record, the Court finds that the Defendant has not established its
Accordingly, the motion for summary judgment is hereby denied.
A pre-trial conference will be held on September 28, 2004 at 10:30 a.m. by
The Court will initiate the conference.