New York State Court of Claims

New York State Court of Claims

STORMS v. THE STATE OF NEW YORK, #2005-030-541, Claim No. 109436, Motion No. M-70101


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:
August 15, 2005
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)

The following papers were read and considered on Claimant's motion[1] for summary


1,2 Notice of Motion; Affidavit in Support of Notice of Motion for Summary Judgment by Nathaniel Storms, Claimant

  1. Affirmation in Opposition by Elyse J. Angelico, Assistant Attorney General and attached exhibits
4,5 Filed Papers: Claim, Answer[2]

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

Nathaniel Storms alleges in Claim Number 109436, filed on June 4, 2004, that he was assaulted by correction officers while an inmate at Sing Sing Correctional Facility (hereafter Sing Sing) and suffered serious injury. In its Answer, in addition to general denials, the Defendant asserts five affirmative defenses.

In his affidavit in support of the present motion, Claimant indicates he was notified by the Court that the claim had "neither been placed on any Motion Calendar, nor is scheduled to be placed on one in the near future although the Notice of Intention was received by defendant in July of 2003, and responded on the 14th day of July, 2004." [Affidavit in Support of Notice of Motion for Summary Judgment, ¶3 ]. Claimant argues that the "delay is unreasonable, and can only be beneficial to defendant . . . the evidence presented in the complaint is true and correct, and are fully verifiable by the records of the Office of the Inspector General, and by Court records wherein two of the Corrections Officers complained of plead to reduced charges stemming from their unwarranted, vicious and brutal attack on claimant . . . the defendant is fully aware of these records . . . claimant has complied with every demand of defendant in the production of records pertaining to this action . . ." [ibid. ¶¶4-8].

Apparently construing two routine letters from the Clerk's office responding to Claimant's request concerning the status of his claims as evidencing some sort of delay in moving the matter to trial, Claimant has made this motion for immediate relief.

In her Affirmation in Opposition to the Claimant's application, the Assistant Attorney General recites a version of events conflicting with those alleged in the underlying claim, and attaches various documents from the New York State Department of Correctional Services' records that may ultimately be submitted on the trial of the matter.

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. If it shall appear that any party other than the moving party is entitled to a summary judgment, the court may grant such judgment without the necessity of a cross-motion.
Assuming 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 which require a trial. Winegrad v New York University Medical Center, 64 NY2d 851 (1985); Zuckerman v City of New York, 49 NY2d 557 (1980). Indeed, "[t]he ‘[f]ailure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers' . . . (citation omitted)." Ayotte v Gervasio, 81 NY2d 1062, 1063 (1993).

Use of physical force against an inmate is governed by statute, regulation, and the attendant case law. The statute provides in pertinent part " . . . [w]hen any inmate . . . shall offer violence to any person, . . . or resist or disobey any lawful direction, the officers and employees shall use all suitable means to defend themselves, to maintain order, to enforce observation of discipline, [and] to secure the persons of the offenders . . ." Cons Laws of NY, Book 10, § 137(5) (2001). As set forth at 7 NYCRR § 251-1.2 (a), an officer must use " . . . [t]he greatest caution and conservative judgment . . . in determining . . . whether physical force is necessary; and . . . the degree of such force that is necessary." Once an officer determines that physical force must be used, " . . . only such degree of force as is reasonably required shall be used." 7 NYCRR § 251-1.2(b). The state may be liable for the use of excessive force by its employee under the concept of respondeat superior. See Jones v State of New York, 33 NY2d 275, 279 (1973) and Court of Claims Act §8.

To assess whether force was necessary, or whether the particular degree of force used was reasonable, " . . . a Court must examine the particular factual background and the circumstances confronting the officers or guards (see e.g. Lewis v State of New York, 223 AD2d 800; Quillen v State of New York, 191 AD2d 31; Brown v State of New York, 24 Misc 2d 358). Often the credibility of witnesses will be a critical factor in these determinations (Davis v State of New York, 203 AD2d 234; . . . citation omitted)." Kosinski v State of New York, Claim No. 97581 (November 30, 2000, Sise, J.).

Claimant has not met his initial burden of showing entitlement to judgment as a matter of law, and has not proffered sufficient evidence to eliminate any material issues of fact. The claim is a sworn statement, alleging certain facts and raising alleged regulatory violations. It does not conclude factual issues that would need to be determined in a trial before this Court. Correction officers recall a different version of events than that proposed by Claimant, with different legal consequences. Accordingly, there are clearly material issues of fact precluding summary resolution.

Claimant's motion number M-70101 is in all respects denied.

August 15, 2005
White Plains, New York

Judge of the Court of Claims

[1] Claimant has also filed an additional Claim No. 109539 apparently stemming from the same incident of June 20, 2003; and has filed another motion for summary judgment relative to that claim as well [M-70100]. This Claim [No. 109436] does not include a cause of action for wrongful confinement, whereas Claim No. 109539 does. Claimant and Defendant have to some extent made the same submissions with regard to each motion, and Claimant's "Letter Motion" - noted below at footnote 2 - addresses both Claims and both motions. In the future, Claimant is directed to make separate submissions to avoid filing problems.
[2] A "Letter Motion" addressed to the Chief Clerk of the Court of Claims, dated June 20, 2005 was received in the Clerk's Office on June 24, 2005 - well after the return date of the motion. Because it was received after the return date, the Court would generally not consider the submission, however upon review the letter and its attachments simply further convinces the Court that this matter is not subject to summary determination.