Notice of Motion, Affidavit in Support, with Exhibits (M-71364) 5,6
Affirmation in Opposition (M-71364) 7
Filed Papers: Claim, Verified Answer.
In his claim, claimant seeks damages for personal injuries suffered by him
while he was attacked by another inmate on September 3, 2003, when both claimant
and his assailant were incarcerated at Oneida Correctional Facility. Claimant
alleges that the State was negligent in failing to take appropriate steps to
prevent this assault, and that the State had prior notice of a potential assault
involving his assailant. In Motion No. M-71225, claimant seeks an order
granting him summary judgment on this claim.
Summary judgment is a drastic remedy which deprives a party of its day in court
and should not be granted where there is any doubt as to the existence of a
material issue of fact (Moskowitz v Garlock, 23 AD2d 943). It is the
procedural equivalent of a trial (Andre v Pomeroy, 35 NY2d 361). The
role of the Court, therefore, on a motion for summary judgment is not to resolve
material issues of fact, but instead to determine if such issues exist
(Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395). In doing so,
the Court must examine the submitted proof in a light most favorable to the
party opposing the motion. Summary judgment may only be granted if the movant
provides evidentiary proof in admissible form to demonstrate that there are no
material questions of fact (Winegrad v New York Univ. Med. Center, 64
NY2d 851). The threshold to be met is high, since “there must be only
one conclusion that can be drawn from the undisputed facts” (Sanchez v
State of New York, 99 NY2d 247, 254). Negligence actions are rarely
appropriate for resolution by summary judgment, since they typically involve
numerous factual issues and require an assessment of whether the
defendant’s actions were reasonable (Davis v Federated Dept.
Stores, 227 AD2d 514).
In support of his motion, claimant has submitted affidavits from Phillip Rivera
and Eduardo Fernandez (see Exhibit D to Items 1, 2), fellow inmates at Oneida
Correctional Facility, who both state that they witnessed claimant present a
complaint against inmate Garcia (his assailant) to Correction Officer Kosina
prior to the incident which forms the basis of this claim. It is
claimant’s position that these affidavits establish that the State had
prior notice of a potential assault and should have taken steps to prevent this
incident. In response, however, defendant has submitted the affidavit of
Correction Officer Kosina (see Item 4) in which he directly contradicts the
statements contained in the affidavits of inmates Rivera and Fernandez.
Correction Officer Kosina states that claimant had never requested protective
custody from inmate Garcia, and had never approached him with any concerns about
threats made by inmate Garcia prior to the incident of September 3, 2003.
These contradictory affidavits clearly establish a material issue of fact with
regard to potential State liability, precluding this Court from rendering any
judgment as a matter of law. It is readily apparent that this is a case in
which witness testimony must be assessed, and the credibility of such witnesses
must be considered, prior to any determination on liability.
In his other motion, which was submitted shortly after the State had responded
to the initial motion for summary judgment, claimant ostensibly seeks an order
striking affirmative defenses of the defendant. Upon examination, the
defendant has asserted one affirmative defense in its Verified Answer, regarding
potential culpable conduct on the part of the claimant. In his affidavit in
support of this motion (M-71364), however, claimant has not addressed this
affirmative defense, but rather has submitted what can best be described as a
reply to defendant’s response (Item 3) to his initial motion for summary
judgment (M-71225). Since this Court has determined herein that this claim is
not appropriate for summary judgment, and since claimant has not provided any
basis whatsoever to strike the affirmative defense contained in
defendant’s verified answer, this motion (M-71364) must be denied as well.
Accordingly, it is
ORDERED, that Motion Nos. M-71225 and M-71364 are both hereby DENIED.