New York State Court of Claims

New York State Court of Claims

URENA v. THE STATE OF NEW YORK, #2006-009-028, Claim No. 109727, Motion Nos. M-71225, M-71364


Claimant’s motions for summary judgment and to strike defendant’s affirmative defenses were both denied.

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):
M-71225, M-71364
Cross-motion number(s):

Claimant’s attorney:
Defendant’s attorney:
Attorney General
BY: Joel L. Marmelstein, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant’s attorney:

Signature date:
May 23, 2006

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant has brought a motion (M-71225) seeking an order granting him summary judgment. He has also brought another motion (M-71364) in which he seeks an order striking affirmative defenses set forth in the Verified Answer of the defendant.

The following papers were considered by the Court in connection with these motions:
Notice of Motion, Affidavit in Support, with Exhibits (including affidavits of Phillip Rivera and Eduardo Fernandez at Exhibit D) (M-71225) 1,2

Affirmation in Opposition, Affidavit of James Kosina, with Attachment (Inmate Injury Report) (M-71225) 3,4

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.

May 23, 2006
Syracuse, New York

Judge of the Court of Claims