New York State Court of Claims

New York State Court of Claims

ARNAU v. STATE OF NEW YORK, #2006-014-512, Claim No. 101200, Motion No. M-70987


Production of records which explicitly contradict the sworn deposition testimony of defendant’s employee concerning notice of a dangerous condition provides a basis for renewal of claimant’s motion for summary judgment on the issue of liability, which is granted.

Case Information

JONATHAN ARNAU, an infant by his parent and natural guardian CHRISTOPHER ARNAU, CHRISTOPHER ARNAU, GILDA ARNAU
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):

S. Michael Nadel
Claimant’s attorney:
Harvey Sorid
Defendant’s attorney:
Eliot Spitzer, Attorney GeneralBy Assistant Attorney General Todd Schall
Third-party defendant’s attorney:

Signature date:
August 7, 2006
New York

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read on the claimants’ motion for reargument and renewal and for partial summary judgment: Notice of Motion, Affirmation and Exhibits annexed; Affirmation in Opposition and Exhibit annexed; Reply Affirmation.

The claim alleges that the infant claimant was injured when he stepped on hot charcoal in the sand at a barbecue area at Jones Beach, and that the presence of the charcoal in the sand resulted from the negligence of the defendant.

The claimants seek to renew their motion for summary judgment on the issue of liability, which was denied by Decision and Order filed March 15, 2004.[1]

The basis for the claimants’ motion to renew is the production, less than a week before the latest date scheduled for trial, by the defendant of documents which contain evidence of four prior similar incidents — two which occurred within four months prior to the incident underlying this claim, and two others which occurred within three years before.

These documents, and the fact that the incidents to which they refer occurred, explicitly contradict statements contained in the sworn affidavit of Michael Panvini, the defendant’s employee who was responsible for the operations and supervision at the area in question at the time of the incident herein, and for four years prior, which was submitted by the defendant in opposition to the claimants’ motion for summary judgment. Their inclusion in the record render Mr. Panvini’s sworn affidavit of no probative value. His affidavit was the only evidence offered by the defendant in opposition to the original motion.

Thus, the defendant’s opposition no longer raises an issue of fact with respect to the failure of the defendant to provide an appropriate receptacle for hot charcoal, which had been a basis for the Court’s previous Order.

Upon examination of the record, consisting of the verified claim, the affidavit of one of the claimants, and the documented evidence of four prior similar incidents, the Court finds the claimants have established that the presence of hot charcoal in the sand was a dangerous condition, and the defendant was aware of the likelihood of injury, based upon similar incidents in the recent past; and that the failure of the defendant to have in place any means for the disposal of hot charcoals was a breach of its duty of care under the circumstances (see e.g. Mesick v State of New York, 118 AD2d 214; Collins v State of New York, Court of Claims, Mignano, J., February 4, 2004, Claim No. 102837).

The defendant’s opposition, consisting of argument, does not raise any issue of fact. The affidavit of another employee, submitted in opposition to the motion to renew, offers an explanation for the belated production of documents, but none for Mr. Panvini’s earlier sworn statements.

Accordingly, the claimants’ motion for renewal is granted, and upon renewal the claimants’ motion for summary judgment as to liability is granted.

Counsel are directed to confer and agree upon an expedited schedule for the completion of any discovery necessary for a trial on the issue of damages.

August 7, 2006
New York, New York

Judge of the Court of Claims

[1].Since that time, the trial, initially scheduled for March 29, 2004, was adjourned three times due to unanticipated circumstances, at the request of one or the other party, on consent.