New York State Court of Claims

New York State Court of Claims

ALVAREZ v. THE STATE OF NEW YORK, #2005-032-032, Claim No. 109693, Motion Nos. M-69406, CM-69542


Motion by a pro se inmate for summary judgment in his favor in connection with injuries he received while riding in a prison van is denied as premature; defendant's motion to compel the production of medical authorizations so that the issue of "serious injury" can be litigated is granted; and defendant's motion to amend the answer to assert an affirmative defense based on Vehicle and Traffic Law §1103 is denied as unnecessary.

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:
Timothy Alvarez, Pro Se
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney GeneralBy: Paul F. Cagino, Assistant Attorney General, Of Counsel
Third-party defendant's attorney:

Signature date:
March 30, 2005

Official citation:

Appellate results:

See also (multicaptioned case)


This is a claim to recover for personal injuries sustained when claimant and 9 other inmates of Clinton Correctional Facility were being transported to the medical center at Coxsackie Correctional Facility in a prison van. Claimant alleges that he was shackled, in handcuffs and leg irons, with the cuffs attached to a waist chain, and that the officers in charge of the transport failed to secure the prisoners with seat belts. The correction officer who was driving the van fell asleep, according to claimant, and the van drifted off to the left, striking a guide rail. Claimant and the other inmates were thrown around in the back of the van, striking one another and the seats, seat backs and sides of the vehicle. Following the accident, it is alleged, the correction officials waited over an hour before attending to the medical needs of most of the inmates. Claimant states that he continues to suffer from pain in his neck and back, as well as from mental anguish, anxiety and nightmares.

In support of his motion for summary judgment, claimant has provided an itinerary authorization establishing that he was on the transport on the day in question and that the officers named in the claim – Correction Officer West and Correction Officer Owen – were the guards in charge of the transport (Alvarez affidavit, Exhibit A). He has also submitted a copy of the accident report confirming that he was a passenger in the van and reciting Officer West's account of the accident, which is that a deer ran from the woods and in taking evasive action, he pulled too far to the left and struck the guide rail and wire (id., Exhibit C). An accident investigation (id., Exhibit D), conducted by State Police Trooper John A. Stubbe IV, states that it could not be determined whether seat belts had been in use at the time of the accident and claimant is noted as having "minor neck pain." For reasons set forth in detail in the report, Trooper Stubbe concluded that the accident was caused when the driver of the van fell asleep.

Defense counsel opposes the motion on several grounds, only one of which need concern the Court at this juncture. Defense counsel states, and claimant does not deny, that claimant has failed to provide an authorization for release of his medical information. This information is needed, counsel asserts, because the State intends to move for summary judgment dismissing the claim on the ground that claimant did not suffer a "serious injury" as that term is defined by Insurance Law § 5102 [b]) (Cagino affirmation, ¶5). Under New York's no-fault law, an injured party bears the burden of making a threshold showing of serious injury in order to institute an action for injuries sustained in a vehicle collision (see, Licari v Elliott, 57 NY2d 230 [1982]). Claimant argues that medical information is not needed at this time because the issue before the Court is liability, not the extent of any injuries (Alvarez reply affidavit, ¶5). In most circumstances, that would be true, but, as stated above, the presence or absence of a serious injury is a threshold question under the no-fault statute, and thus it may be addressed before liability is determined.

In addition to opposing claimant's motion for summary judgment, defendant has cross-moved for permission to amend its answer to assert as an affirmative defense the applicability of Vehicle & Traffic Law §1103. This statute imposes a standard of recklessness, rather than simple negligence, on hazard vehicles that are engaged in hazardous operations. The cross motion is unnecessary, as it has been held that the standard of care the statute imposes in certain situations, need not be pleaded as an affirmative defense (Wilson v State of New York, 269 AD2d 854 [4th Dept 2000], lv granted 95 NY2d 752 [2000], order affirmed sub nom Riley v County of Broome, 95 NY2d 455 [2000]; McDonald v State of New York, 176 Misc 2d 130, 140-141 [Ct Cl 1998]). As Judge Francis T. Collins pointed out in McDonald, "the facts that bring the case within the statute are what the claimants themselves allege" (id., relying on Ferres v City of New Rochelle, 68 NY2d 446 [1986]).

Because the issue of serious injury must be decided before summary judgment could issue, claimant's motion for summary judgment in his favor is denied as premature, and that branch of defendant's cross motion seeking an order compelling claimant to produce the demanded medical authorizations is granted. That branch of defendant's cross-motion seeking permission to amend the answer is denied as unnecessary.

March 30, 2005
Albany, New York

Judge of the Court of Claims

The following papers were read on claimant's motion for summary judgment in his favor and on defendant's cross motion for permission to amend the answer and for an order to compel:

1. Notice of Motion and Supporting Affidavit of Timothy Alvarez, pro se, with annexed Exhibits;

2. Notice of Cross Motion and Supporting Affirmation of Paul F. Cagino, Esq., AAG, with annexed Exhibits;

3. Reply Affidavit of Timothy Alvarez, pro se, with Memorandum of Law;

Filed papers: Claim; Answer