New York State Court of Claims

New York State Court of Claims

JONES v. STATE OF NEW YORK, #2005-018-495, Claim No. 105792, Motion No. M-70836


Synopsis


Claimant's motion for summary judgment is DENIED.

Case Information

UID:
2005-018-495
Claimant(s):
CHARLES JONES
Claimant short name:
JONES
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
105792
Motion number(s):
M-70836
Cross-motion number(s):

Judge:
DIANE L. FITZPATRICK
Claimant's attorney:
CHARLES JONESPro 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:
December 15, 2005
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant brings a motion for summary judgment. The motion was originally returnable

on November 2, 2005, however, the Assistant Attorney General assigned to this case wrote to the Court and requested an adjournment until November 23, 2005. This claim is scheduled for trial on January 24 through January 26, 2006. Given the limited time before trial, the Court granted the Assistant Attorney General's request but adjourned the motion only until November 9, 2005. Unfortunately the Assistant Attorney General was out of the office and could not get his response papers out timely. Claimant objects and requests that the Court not consider Defendant's untimely responsive papers. The Court has not considered Defendant's opposition to the motion.

In support of his motion, Claimant has submitted a copy of his verified claim, the verified answer, Claimant's notice to admit and Defendant's response, the interrogatories of Correction Officer Irwin Shaver, and an affidavit of Jesse Sanchez. The log book entry and incident report, also attached to the moving papers, were not considered as they are not in admissible form.

The substance of the claim alleges that Defendant was negligent, grossly negligent, and showed reckless disregard for Claimant's safety when it failed to properly clean the gymnasium floor at Ogdensburg Correctional Facility on June 17, 2000, causing Claimant injury when he went out on the floor to play basketball, slipped and fell.

It is clear from reviewing the submitted documents that there are several factual disputes and credibility issues, including the specifics of how the gymnasium floor was cleaned, when the cleaning was completed, when Correction Officer Shaver inspected the floor with Claimant, and whether cleaning fluid was still visible and wet at that time. Claimant, Correction Officer Shaver, and Deponent Sanchez all have differing versions of the events.

On a motion for summary judgment the movant has the burden to establish its right to judgment as a matter of law by proof in admissible form (Friends of Animals v Assoc. Fur Mfrs., 46 NY2d 1065, 1067-1068). It is not the place of the Court on a motion for summary judgment to determine which witness's 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.


December 15, 2005
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 Charles Jones, in support, with exhibits attached thereto..........2