New York State Court of Claims

New York State Court of Claims

SMITH v. THE STATE OF NEW YORK, #2005-013-005, Claim No. 96846, Motion Nos. M-67814, M-68124, M-68210


Synopsis


Claimant's motion for summary judgment, or in the alternative to compel discovery, and his motion to renew the 1998 summary judgment motion are denied in all respects, and defendant's motion for a protective order is granted.

Case Information

UID:
2005-013-005
Claimant(s):
KEITH SMITH
Claimant short name:
SMITH
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
96846
Motion number(s):
M-67814, M-68124, M-68210
Cross-motion number(s):

Judge:
PHILIP J. PATTI
Claimant's attorney:
R. BRIAN GOEWEY, ESQ.
Defendant's attorney:
HON. ELIOT SPITZER
Attorney General of the State of New YorkBY: JAMES L. GELORMINI, ESQ.
Third-party defendant's attorney:

Signature date:
March 14, 2005
City:
Rochester
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision



There are presently three motions before the Court. The first is Claimant's motion for summary judgment or, in the alternative to compel disclosure (M-67814). The second is Defendant's motion for a protective order (M-68124); and the third motion is Claimant's motion to renew the prior motion for summary judgment decided by the Hon. Donald J. Corbett, Jr., in a decision and order filed December 23, 1998 (M-68210). The following papers were read and contemplated with respect to these motions:

Claimant's notice of motion for summary judgment or, in the alternative, to compel disclosure (M-67814);

Supporting affirmation of R. Brian Goewey, with exhibits annexed;


Defendant's notice of motion for a protective order (M-68124), and affirmation of James L. Gelormini, Esq., in support and in opposition to Claimant's motion for summary judgment, with exhibits annexed;


Claimant's notice of motion to renew the State's motion for summary judgment (M-68210) and supporting affirmation of R. Brian Goewey, Esq., with exhibits annexed;


Claimant's affirmation in support of motion to renew and to oppose State's cross-motion for protective order;


Affirmation of James L. Gelormini, Esq., in opposition to Claimant's motion to renew and in reply to Claimant's opposition to the State's motion for a protective order, with exhibits annexed;


Affirmation of R. Brian Goewey, Esq. in reply to Defendant's opposition to the Claimant's motion to renew the State's motion for summary judgment, with exhibits annexed;


Supplemental affirmation of R. Brian Goewey, Esq., with exhibit annexed;


Filed Papers: Claim, Answer, Judge Corbett's December 23, 1998 summary judgment motion decision and order (M-57187), and Judge Corbett's November 28, 2001 discovery motion decision and order (M-62695).


PROCEDURAL HISTORY

This is an action for personal injuries arising out of an inmate-on-inmate attack that occurred on June 1, 1997 at Attica Correctional Facility (Attica) when an inmate, Derrick Brown, attacked the Claimant, Keith Smith, with a razor type instrument resulting in a significant cut on the Claimant's right cheek. In 1998 the Defendant moved for summary judgment. In his decision and order filed December 23, 1998, Judge Donald J. Corbett, Jr., denied summary judgment on the grounds that the Claimant had raised a material question of fact as to whether the Defendant negligently failed to respond promptly to the attack and narrowed the issue to the promptness of the Defendant's response (M-57187, p. 8). Subsequently, when the Defendant rejected Claimant's discovery demands regarding the assaulting inmate Brown and his alleged keeplock status as being outside the scope of the claim, Claimant moved to compel disclosure. In his decision and order filed November 28, 2001, Judge Corbett denied Claimant's motion, as it sought discovery on issues that were disposed of in the summary judgment motion and went beyond the limited issue of the promptness of the Defendant's response (M-62695, p. 4). Judge Corbett retired from the bench on June 30, 2003, and this case has been assigned to me.


DECISION

Summary Judgment Motions

The first motion presented herein (M-67814), is Claimant's motion for summary judgment or, in the alternative, to compel disclosure. After the Defendant objected to Claimant's motion, intra alia, on the grounds that Claimant's motion affected a prior order and was in reality a motion to renew, Claimant filed the third motion herein (M-68210) to renew the State's earlier summary judgment motion, and on renewal, to allow the Claimant to proceed on a cause of action for negligent supervision of a keeplock inmate. I agree that Claimant's summary judgment motion should be construed as a motion to renew the 1998 summary judgment motion, and that Claimant's summary judgment motion and his motion to renew should be addressed within the parameters of CPLR 2221, which governs motions affecting prior orders, and within the parameters of the doctrine of the law of the case.

The law of the case doctrine is a species of collateral estoppel and it applies to intra-action issues. Thus, once an issue has been decided on the merits, the law of the case doctrine makes that issue "binding not only on the parties, but on the court as well: no other judge of coordinate jurisdiction may undo the decision" (Siegel, NY Prac §448, at 723 [3d ed.]). Normally, however, a denial of summary judgment is not entitled to res judicata, but may still be considered the law of the case with respect to any subsequent summary judgment motions in the same case, on the same issue and on the same proof (Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3212:21). "[M]ultiple summary judgment motions in the same action should be discouraged in the absence of newly discovered evidence or sufficient cause" (Gadley v U.S. Sugar Co., 259 AD2d 1041, [citing Public Serv. Mut. Ins. Co. v Windsor Place Corp., 238 AD2d 142, 143]).

Here the Court is faced with a unique situation. Technically, Judge Corbett denied the Defendant's earlier motion for summary judgment. Thus, arguably, this decision may not be entitled to collateral estoppel. It is still, however, the law of the case with respect to issues decided therein. In rendering his decision, Judge Corbett discussed at length the three scenarios set forth in Donaldson v State of New York (Ct Cl, Claim No. 93943, Jan. 30, 1998, Bell, J.), which traditionally had formed the predicate of a cause of action in an inmate-on-inmate assault case. In this regard, Judge Corbett noted that nowhere in the claim or in Claimant's motion papers was it alleged that the victim was a known risk (Donaldson, Scenario #1), or that the assailant was violent or prone to assaulting others (Donaldson, Scenario #2), and ultimately narrowed the issue to the promptness of the defendant's response (Donaldson, Scenario #3). Claimant, by his present motions, seeks a renewal of the earlier summary judgment motion and on renewal, seeks leave to proceed on a negligent supervision of a keeplock inmate cause of action (a Donaldson Scenario #2 Cause of Action).

Such a cause of action was, however, effectively precluded by Judge Corbett's 1998 summary judgment decision and order. In fact, in his 2001 discovery decision and order, Judge Corbett reiterated that causes of action sounding in Donaldson scenarios #1 and #2 were disposed of by his earlier summary judgment decision and order (Motion M-62695, p.4). While I agree that a negligent supervision cause of action was precluded by the 1998 summary judgment motion, I also recognize that there are extraordinary circumstances, such as a change in the law, where the law of the case doctrine must give way (see Snyder v Newcomb Oil Co., 194 AD2d 53), and further recognize that a prior decision and order may be revisited pursuant to a CPLR 2221 motion to renew.

Pursuant to CPLR 2221(e)(2) and (3), a motion for leave to renew a prior motion "shall be based upon new facts not offered on the prior motion that would change the prior determination or shall demonstrate that there has been a change in the law that would change the prior determination; and shall contain reasonable justification for the failure to present such facts on the prior motion." Claimant argues that Judge Corbett's decision should be revisited because Sanchez v State of New York (99 NY2d 247) changed the law with respect to inmate-on-inmate assaults. Indeed, some have argued that the decision in Sanchez has clarified the law and applied an additional standard, to wit, whether the defendant knew or reasonably should have known that an inmate claimant was at risk of harm. In my view, however, the Sanchez Court was merely reaffirming "the traditional standard of reasonableness;" that is, "reasonable care under the circumstances" (Sanchez v State of New York, 99 NY2d at 254).[1] This is the same standard of care utilized by Judge Corbett in analyzing foreseeability with respect to the 1998 summary judgment motion.

But even assuming, arguendo, that Sanchez represents a change in the foreseeability standard (see Gangler v State of New York, 302 AD2d 964), and I would agree to review the 1998 summary judgment motion, nothing in Sanchez would change Judge Corbett's prior decision as is required for renewal pursuant to CPLR 2221. Sanchez was an inmate-on-inmate assault case where a claim of negligent supervision was dismissed by the trial court on the grounds that the attack was unforeseeable as a matter of law. This decision was affirmed by the Appellate Division (Sanchez v State of New York, 288 AD2d 647). The Court of Appeals, however, concluded that the record raised a triable question of fact regarding foreseeability and thus, denied the State summary judgment. In Sanchez , however, the claimant provided an unrefuted affidavit of an expert penologist who opined that the State's supervision of Sanchez on the night of the assault violated generally accepted penological standards of care, and the State failed to provide any evidence to refute such assertions.

Here, Claimant failed to proffer any expert affidavit, and otherwise failed to provide any information to establish or even suggest foreseeability, actual or constructive. Rather, Claimant submitted an affidavit from a fellow inmate which merely disputed the response time of the correction officers after the assault had begun. Indeed, as Judge Corbett concluded, the Claimant failed to raise the issue of notice to the Defendant or of foreseeability in opposing the 1998 summary judgment motion. Judge Corbett therefore let the matter continue solely with respect to the one and only issue raised by Claimant on the prior motion, the promptness of the State's response. Considering the paucity of evidence presented by the Claimant on the prior motion for summary judgment, the proof failed both the actual notice test of foreseeability, as well as the constructive notice test reviewed by the Sanchez and the Gangler courts (see generally Fontenot v State of New York, Ct Cl, UID #2002-013-524 [Claim No. 98022], Dec. 31, 2002, Patti, J.).[2] Because Judge Corbett's decision would not be changed under either a Sanchez or Gangler analysis,[3] Claimant is not entitled to renewal pursuant to CPLR 2221 on a change in the law theory.

Claimant also alleges that new facts have been discovered since the prior motion for summary judgment was argued that would change the outcome of Judge Corbett's decision. Initially, Claimant argues that Correction Officer Korytkowski's deposition contradicts Korytkowski's affidavit submitted in support of the original motion for summary judgment and thereby represents new facts that were not available in 1998 at the time of the original summary judgment motion. Specifically, Claimant alleges that the State negligently left unsupervised and unrestrained a keeplock inmate in a company to which he did not belong during "go-back," when the inmates were returning from breakfast, allegedly a time of elevated risk for inmate-on-inmate assaults (see affirmation of R. Brian Goewey, Esq., in support of Claimant's motion to renew, ¶¶ 29, 38).[4]

In support of its 1998 motion for summary judgment dismissing the claim, the State submitted an affidavit of Correctional Officer David Korytkowski (see Exhibit 12, attached to the December 19, 2003 affirmation of R. Brian Goewey, Esq., in support of Claimant's motion for summary judgment). In this affidavit, Korytkowski stated that the assaulting inmate "was never left unsupervised in the day room and was in my sight." Claimant now argues that this statement was "false and misleading" (Goewey's March 19, 2004 affirmation in support of Claimant's motion to renew, ¶ 15). Claimant bases this allegation on Officer Korytkowski's deposition testimony that he escorted a group of inmates to chow and that he did not return to the dayroom until after the morning meal (Korytkowski deposition transcript, p. 30, Exhibit 3, attached to the March 2, 2004 affirmation of James L. Gelormini, Esq.). Because the Claimant was assaulted while returning from his morning meal, Claimant concludes from Officer Korytkowski's deposition transcript that the officer was not in the dayroom when the assailant ran out of the room and attacked the Claimant because he could not have been in the dayroom and returning from the morning meal at the same time. I do not agree, however, that Officer Korytkowski's deposition testimony contradicts his 1998 affidavit. While Officer Korytkowski was uncertain as to the time he returned to the dayroom (Exhibit 3, p. 30), he consistently testified at his deposition that he was in the dayroom when Brown ran out and assaulted the Claimant (Exhibit 3, pages 6, 45-46). His testimony in this regard was corroborated by Officer Graham's deposition testimony (Exhibit 4, pages 13-14). Moreover, both officers testified that the door to the dayroom is locked when empty or when an inmate is alone in the room, but that it is left open for security purposes when an officer is in the room with an inmate or inmates (Exhibit 3, pages 26-29; Exhibit 4, 36-37). This testimony further corroborates Officer Korytkowski's 1998 affidavit and his deposition testimony that he was in the dayroom at the time of the assault, because, had he still been escorting other inmates to or from the morning meal, the door to the dayroom, by protocol, would have been locked, preventing the assailant from running out of the room.

Claimant further alleges that Officer Korytkowski's deposition testimony contradicts that portion of his 1998 affidavit in which he stated that inmate Brown "was in my sight" at the time of the assault. During his deposition, Officer Korytkowski testified that while he was watching the other inmate give a urine sample to ensure an unadulterated sample, he was not looking directly at inmate Brown who was standing very close to him (Exhibit 3, p.7). I do not agree that this deposition testimony contradicts Officer Korytkowski. Moreover, "the State's duty to prisoners does not mandate unremitting surveillance in all circumstances, and does not render the State an insurer of inmate safety" (Sanchez v State of New York, 99 NY2d, at 256).

Claimant finally argues that he was not aware that the assailant was a keeplock inmate at the time he filed his claim. Regardless, Claimant's former counsel was aware of inmate Brown's keeplock status, at least at the time of the 1998 summary judgment motion.[5] In opposition to the original motion for summary judgment, the affidavit of inmate Eleby was offered by the Claimant. The assailant is specifically referred to therein as a keeplock inmate. As Judge Corbett noted in his 2001 discovery decision and order, the Claimant should have raised the issue of the assaulting inmate's keeplock status in opposition to the State's motion for summary judgment, or sought an adjournment at that time to seek an in camera inspection or other relief to ascertain facts to oppose summary judgment (M-62695). A motion for leave to renew must be based on new facts that were unavailable at the time of the original motion (CPLR 2221[e][2]). Here, because it cannot be said that the alleged new facts were unavailable at the time of the original 1998 motion, Claimant's motion for leave to renew the 1998 summary judgment motion is denied (see Precision Electro Minerals Co., v Dryden Mutual Insurance Co., 4 AD3d 823; Boreanaz v Facer-Kreidler, 2 AD3d 1481).

Claimant's motion to renew would also have to be denied because Claimant seeks, on renewal, to proceed on a theory that the State negligently failed to supervise the keeplock assaulting inmate. As Judge Corbett noted in his 1998 decision and order (M-57187), "an assertion that the assailant was violent or prone to assaulting others has not been raised," and the Claimant failed to allege either foreseeability or notice to the Defendant. It would therefore be an abuse of discretion to grant a renewal motion predicated on a theory of liability not advanced in opposition to the original summary judgment motion (Fedchak v Gerald T. Stay Co., 222 AD2d 1125; Mid-State Elevator Co. v Empire-Salina Associates, 190 AD2d 1061[appeal No. 2]).

Based on the foregoing, Claimant's motion for summary judgment (M-67814)[6] and Claimant's motion for leave to renew the prior summary judgment motion (M-68210) are both denied.


Discovery Motions

The remaining motions before this Court address disclosure issues. By his initial motion, (M-67814), Claimant moves, in the alternative, to compel discovery of documents relating to the assailant and to that inmate's status in keeplock. This precise issue was addressed by Judge Corbett in his November 28, 2001 discovery decision and order (M-62695), when Claimant brought an identical motion seeking to compel the Defendant to produce the same information.[7] In denying Claimant's 2001 discovery motion, Judge Corbett noted that the Claimant was seeking material that went beyond the limited parameters of his summary judgment decision and was seeking "disclosure for cause[s] of action... which were already disposed of in my earlier decision and order." Because Judge Corbett's 2001 discovery decision determined that information relating to the assailant and his keeplock status was not discoverable and because his discovery decision remains the law of the case, that portion of Claimant's present motion (M-67814) which seeks to compel disclosure is denied (Parkhill v Cleary, 277 AD2d 963 [appeal No. 2]; Brown v State of New York, Ct Cl, UID #2004-009-76 [Claim No. 103284, Motion No. M-68900], Dec. 1, 2004, Midey, J.). Claimant's present motion is merely an attempt to obtain the same relief denied by Judge Corbett's 2001 discovery decision and order (see Smyczynski v Genesis Mktg. Group, 185 AD2d 658).

Claimant has not alleged any new facts or a change in the law that would mandate a change in Judge Corbett's 2001 discovery decision and order, under a CPLR 2221 analysis, with the possible exception of Sanchez v State of New York (99 NY2d 247). As noted earlier, Sanchez does not represent a change in the law, but even if it did, nothing in Sanchez would mandate a change in Judge Corbett's 1998 summary judgment decision and order to allow Claimant to proceed on an unpled cause of action for negligent supervision of a keeplock inmate or require the State to produce discovery regarding a cause of action that was effectively disposed of by Judge Corbett's 1998 summary judgment decision and order. That portion of Claimant's initial motion (M-67814) which seeks to compel Defendant to produce discovery relating to inmate Brown, his status as a keeplock inmate or other information relating to keeplock inmates and/or their supervision is denied, and Defendant's motion for a protective order (M-68124) is granted.

Based on the foregoing, it is hereby

ORDERED, that Claimant's motion for summary judgment, or in the alternative, to compel discovery (M-67814) is denied in all respects; and it is further


ORDERED, that Defendant's motion for a protective order (M-68124) is granted; and it is further

ORDERED, that Claimant's motion to renew (M-68210) is denied.


March 14, 2005
Rochester, New York

HON. PHILIP J. PATTI
Judge of the Court of Claims




  1. [1] As the Hon. Richard E. Sise noted in Heyliger v State of New York (Ct Cl, UID #2003-028-004 [Claim No. 91867], June 12, 2003), "This Court does not view Sanchez as an expansion of the test of forseeability [sic] in inmate assault cases [citation omitted]. Rather, through Sanchez, the Court of Appeals is reorienting this Court, as well as the various Appellate Divisions, with the Palsgraf doctrine of duty as defined by reasonably forseeable [sic] hazards and further, that forseeability [sic] is determined not just by actual notice of a hazard, but by constructive notice as well."
  2. Decisions and selected orders of the New York State Court of Claims are available on the Internet at
  1. [3] Claimant alleges that the three Donaldson scenarios discussed by Judge Corbett in his 1998 summary judgment decision and order are not the only three scenarios for imposing liability for an inmate-on-inmate assault. Indeed, the dissent in Sanchez recognized that, while the three Donaldson scenarios were the most common means by which actual and constructive notice is established, this list is incomplete (Sanchez v State of New York, 99 NY2d at 261-262). Judge Corbett allowed Claimant to proceed on a failure to promptly respond to an assault theory of liability, while noting that this theory did not completely satisfy the Donaldson scenario #3 criteria. In so doing, Judge Corbett was obviously considering liability scenarios outside of the traditional Donaldson scenarios. Moreover, Claimant is now seeking to proceed on a failure to supervise theory which is traditional Donaldson scenario #2 theory, which was rejected by Judge Corbett because, as previously noted, the Claimant failed to allege notice to the Defendant or foreseeability in opposing the 1998 summary judgment motion.
  2. [4] The Court has taken the liberty of renumbering the paragraphs in Mr. Goewey's affirmation in support of Claimant's motion for summary judgment and the paragraphs in Mr. Goewey's affirmation in support of Claimant's motion to renew, as the paragraphs in both of these affirmations were not numbered sequentially as presented to the Court. More importantly, however, Claimant offers no evidentiary proof that the time when the inmates returned from the morning meal was a time of heightened risk. Rather, Claimant's counsel merely cites the Sanchez decision wherein the claimant proffered an expert affidavit in which that expert opined that the circumstances in Sanchez involved a time of heightened risk. The unsupported musings of Claimant's counsel herein do not amount to evidentiary proof of a time of heightened risk under the circumstances presented in this case.
  3. [5] In 1998, when Judge Corbett heard the original motion for summary judgment, Claimant was represented by Leonard Brodsky, Esq. Claimant's present counsel, R. Brian Goewey, Esq., became involved with the case in February, 2000 as trial counsel when Mr. Brodsky was in the process of retiring. Since that time, Mr. Brodsky has passed away and Mr. Goewey has remained as Claimant's counsel.
  4. [6]Claimant's motion for summary judgment would have to be denied even if it was being considered on its own merits and not in conjunction with a motion to renew. Considering all of the evidence presented by Claimant in support of the present motions, there is insufficient evidence to establish the State's liability for the attack. "The mere occurrence of an inmate assault, without credible evidence that the assault was reasonably foreseeable, cannot establish the negligence of the State" (Morillo v State of New York, Ct Cl, UID #2005-010-012 [Claim No. 107761], Feb. 3, 2005, Ruderman, J., citing Sanchez v State of New York, 99 NY2d 247, 256).
  5. [7] Once again, Claimant failed to appeal or move to reargue or to renew Judge Corbett's 2001 discovery decision and order.