New York State Court of Claims

New York State Court of Claims

HUNTER v. THE STATE OF NEW YORK, #2006-015-086, Claim No. 110486, Motion No. M-71163


Synopsis


Claimant's motion related to the State's affirmative defenses found to be a motion for summary judgment was denied by the Court as insufficiently supported.

Case Information

UID:
2006-015-086
Claimant(s):
DEVON HUNTER
Claimant short name:
HUNTER
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
110486
Motion number(s):
M-71163
Cross-motion number(s):

Judge:
FRANCIS T. COLLINS
Claimant’s attorney:
Devon Hunter, Pro Se
Defendant’s attorney:
Honorable Eliot Spitzer, Attorney General
By: Kevan J. Acton, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
April 27, 2006
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant's motion "for an order granting that the record reflect Claimant's factual and legal affirmative defenses in this action" is denied. The underlying claim seeks to recover damages for personal injuries sustained when the claimant was exposed to tear gas fumes negligently released into the north mess hall at Great Meadow Correctional Facility in Comstock, New York. Although the instant motion is characterized as one for relief related to one or more affirmative defense(s), the claimant actually appears to seek summary judgment determining the State's liability as a matter of law. The defendant has opposed the motion on the grounds that the stated relief is not available in New York civil practice.

Treating the motion as one for summary judgment on the issue of liability, the motion must be denied because it is supported only by the conclusory allegations contained in the movant's affidavit and two uncertified and otherwise unauthenticated documents. As was stated by the Court of Appeals in Alvarez v Prospect Hosp. (68 NY2d 320, 324):
[T]he proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact (Winegrad v New York Univ. Med. Center, 64 NY2d 851, 853; Zuckerman v City of New York, 49 NY2d 557, 562; Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404). Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers (Winegrad v New York Univ. Med. Center, supra, at p. 853).

Claimant's motion for summary judgment is denied since he has failed to support the motion by evidentiary proof in admissible form (Zuckerman v City of New York, 49 NY2d 557; Villager Constr. v Kozel & Son, 222 AD2d 1018).


April 27, 2006
Saratoga Springs, New York

HON. FRANCIS T. COLLINS
Judge of the Court of Claims


The Court considered the following papers:
  1. Notice of motion dated January 11, 2006;
  2. Affidavit of Devon Hunter sworn to January 11, 2006 with exhibits;
  3. Affirmation of Kevan J. Acton dated January 19, 2006;
  4. Reply to Opposition of Devon Hunter dated January 27, 2006;
  5. Affidavit of Devon Hunter sworn to January 27, 2006 with exhibit.