New York State Court of Claims

New York State Court of Claims

DE FREITAS v. THE STATE OF NEW YORK, #2004-030-501, Claim No. 104613, Motion No. M-67504


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:
Third-party defendant's attorney:

Signature date:
January 23, 2004
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers numbered 1 to 5 were read and considered on Claimant's motion

for partial summary judgment:

1,2 Notice of Motion, Affidavit in Support by Miguel De Freitas, Claimant, and attached exhibits

3-5 Filed Papers: Claim, Answer, Defendant's Bill of Particulars filed June 20, 2002

No Opposition

After carefully considering the papers submitted and the applicable law the motion is disposed of as follows:

Miguel De Freitas, the Claimant herein, alleges in Claim Number 104613 in his first cause of action that he was injured while incarcerated at Green Haven Correctional Facility because of the Defendant's negligence in failing to properly maintain a security window which struck him. He specifically indicates that on January 30, 2000 at approximately 9:15 p.m. he was injured when a security window inside the J-Block housing unit recreation room dropped open and crashed on the right side of the claimant's head. He states in his verified Claim that defendant's agents failed to conduct inspections of the window as required,[1] and failed to correct any defects.

In its Answer, the Defendant had interposed a general denial, as well as the affirmative defenses of contributory negligence, assumption of risk, failure to exhaust administrative remedies; as well as jurisdictional defenses. The Defendant had withdrawn the defense with respect to failure to exhaust administrative remedies in its Bill of Particulars filed June 20, 2002, and, in response to an earlier motion, the Defendant had also withdrawn its affirmative defenses of contributory negligence and assumption of risk.[2] The only remaining defense is the jurisdictional one, but given Defendant's default in opposing the present motion, and the acknowledgment in its Answer that a Notice of Intention[3] had been received thus extending the time within which the Claim could be served and filed, the defense is not preserved and is hereby stricken.

Civil Practice Law and Rules §3212(b) provides in pertinent part:

. . . A motion for summary judgment shall be supported by affidavit, by a copy of the pleadings and by other available proof, such as depositions and written admissions. The affidavit shall be by a person having knowledge of the facts; it shall recite all the material facts; and it shall show that there is no defense to the cause of action or that the cause of action or defense has no merit. The motion shall be granted if, upon all the papers and proof submitted the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party . . . the motion shall be denied if any party shall show facts sufficient to require a trial of any issue of fact.

Once a movant has made a prima facie showing of entitlement to judgment as a matter of law by proffering sufficient evidence to eliminate any genuine material issues of fact, the party in opposition to the motion for summary judgment must tender evidentiary proof in admissible form to establish the existence of material issues that require a trial. Winegrad v New York University Medical Center, 64 NY2d 851 (1985); Zuckerman v City of New York, 49 NY2d 557 (1980).

Additionally, Civil Practice Law and Rules §105(u) indicates that ". . . [a] ‘verified pleading' may be utilized as an affidavit whenever the latter is required." The use of the Claimant's own sworn statements contained in his verified pleading together with the affidavit submitted in support of the motion, accompanied as they are by documentary evidence including New York State Department of Correctional Service records suffice here. Alvarez v Prospect Hospital, 68 NY2d 320, 325 (1986).[4] The Court finds that the motion is adequately supported.

Although the State has a duty to protect inmates from foreseeable risks of harm, it is not the insurer of inmate safety. Its duty is to exercise "reasonable care under the circumstances . . ." [Basso v Miller, 40 NY2d 233, 241 (1976)], to protect against foreseeable risks of harm. Assuming that the State did not create the dangerous condition, a Claimant must show that the State had actual or constructive notice of the condition and failed to act reasonably to remedy it. Gordon v American Museum of Natural History, 67 NY2d 836, 837 (1986). Creation of a dangerous condition constitutes actual notice. Lewis v Metropolitan Transportation Auth., 99 AD2d 246, 249 (1st Dept 1984), affd, 64 NY2d 670 (1984). With respect to constructive notice, any " . . . defect must be visible or apparent and it must exist for a sufficient length of time prior to the accident to permit . . . [a defendant] to discover and remedy it . . . (citation omitted)." Gordon v American Museum of Natural History, supra, at 837.

In this case, Claimant has established without contradiction that there were outstanding work orders for the repair of the windows in the J-Block housing area [See Affidavit in Support, Exhibit D], that the State should have been aware of the condition given the failure to inspect, and that the failure to fix the window within a reasonable time was the proximate cause of Claimant's injury. [ibid. Exhibits E and F].

The Court is satisfied, based upon Claimant's presentation, and the lack of any contradictory information, that Claimant is entitled to judgment as a matter of law, as there are no triable issues of fact presented as to the Claimant's first cause of action. Accordingly, Claimant's motion number M-67504 is hereby granted in its entirety, and a trial on the issue of damages alone with respect to his first cause of action[5] shall be held as soon as it is practicable.

January 23, 2004
White Plains, New York

Judge of the Court of Claims

[1] Claimant cites regulations promulgated by the Commissioner of Corrections that pertain to local correctional facilities, and establish an obligation in local facilities to conduct regular inspections of such facilities. See 9 NYCRR §7003.6. These regulations are not applicable to facilities under the aegis of the New York State Department of Correctional Services.
[2] See, Decision and Order DeFreitas v State of New York, Claim No. 104613, Motion No. M-66618, UID #2003-030-550 (Scuccimarra, J. July 28, 2003), attached as Exhibit C to Claimant's Affidavit in Support.
[3] In his Claim the Claimant indicates he served a Notice of Intention upon the Attorney General April 17, 2000, within ninety (90) days of the accrual of the Claim.
[4]"A fair reading of the attorney's affirmation, the hospital records and the defendant's deposition testimony compel the conclusion that no material triable issues of fact exist as to the claims of malpractice asserted against the defendant in the amended complaint as amplified by the bill of particulars. The fact that defendant's supporting proof was placed before the court by way of an attorney's affirmation annexing deposition testimony and other proof, rather than affidavits of fact on personal knowledge, is not fatal to the motion . . . (citations omitted)."
[5] The Court notes that the Claimant alleges three additional causes of action in his Claim, that are not the subject of the present motion. As a second cause of action, Claimant alleges defendant's agents delayed medical treatment to his detriment, as a third cause of action Claimant alleges violation of his New York State Constitutional rights, and as a fourth and final cause of action, Claimant alleges a failure to properly train correction officers and employees in first aid. No factual assertions or legal arguments have been made with respect to these causes of action, thus no ruling with respect to these claims is made.