New York State Court of Claims

New York State Court of Claims

LAMAGE v. THE STATE OF NEW YORK, #2006-015-116, Claim No. 109527, Motion No. M-71662


Synopsis


Motion for summary judgment on claim for negligence in allegedly failing to prevent an assault on the claimant by fellow inmate was denied. Claimant failed to make a prima facie showing of his entitlement to judgment as a matter of law.

Case Information

UID:
2006-015-116
Claimant(s):
EDWIN LAMAGE
Claimant short name:
LAMAGE
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
109527
Motion number(s):
M-71662
Cross-motion number(s):

Judge:
FRANCIS T. COLLINS
Claimant’s attorney:
Edwin Lamage, Pro Se
Defendant’s attorney:
Honorable Eliot Spitzer, Attorney General
By: Frederick H. McGown, III, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
August 23, 2006
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant's motion for partial (sic) summary judgment determining the State's liability and awarding $7,000 in damages on claimant's first cause of action (negligent failure to protect) is denied. The relevant portion of this claim seeks damages for injuries sustained by claimant on May 10, 2004 at Great Meadow Correctional Facility (Great Meadow) where he was allegedly struck on the head with a rock and cut on the face with a razor-like device by a fellow inmate. Claimant alleges that Great Meadow employees knew of the assailant's vicious propensities, were aware of a possible altercation between the two inmates moments before the attack occurred and did nothing to prevent it. Claimant moves for summary judgment on the stated cause of action on the basis of his own affidavit sworn to April 27, 2006 and a photocopy of a portion of a certified transcript of testimony offered at a disciplinary hearing by Correction Officer B. Brooks[1] on May 13, 2004.

Defense counsel opposes the motion by his own affirmation in which he alleges that the motion should be denied on the grounds that the movant has not supplied copies of the pleadings as required by CPLR 3212 (b) and that claimant's supporting affidavit acknowledges the existence of material issues of fact as to the foreseeability of the attack, notice of the assailant's vicious propensities and whether correction officers could have prevented the attack.

As a preliminary matter, although CPLR 3212 (b) requires that a summary judgment motion be supported by a copy of the pleadings, that mandate is of limited utility in the Court of Claims which is a filing court requiring the parties to file their pleadings with the Clerk of the Court (see, Court of Claims Act § 11; 22 NYCRR § 206.5 and § 206.7). The pleadings are thereafter provided to the judge assigned to the claim pursuant to the individual assignment system and are thus available to the Court when it considers a summary judgment motion. While it may be more convenient for the Court to receive copies of the pleadings as part of the papers submitted on a motion for summary judgment, the absence of the pleadings on such a motion does not compel its denial. Defendant's opposition to the motion on these grounds is unavailing.

The rules applicable to the determination of a motion for summary judgment were clearly stated by the Court of Appeals in Alvarez v Prospect Hosp., 68 NY2d 320, 324:
As we have stated frequently, the 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). Once this showing has been made, however, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action (Zuckerman v City of New York, supra, at p 562).
The proponent of a summary judgment motion may only meet its initial burden through the submission of evidentiary proof in admissible form (Rifenburgh v Wilczek, 294 AD2d 653).

Claimant has not made a prima facie showing of entitlement to a judgment as a matter of law by producing proof in admissible form sufficient to eliminate any material issues of fact (see Winegrad v New York University Med. Ctr., 64 NY 2d 851, 853; Welch v Hauck, 18 AD3d 1096). The factual issues to which defense counsel alludes in his affirmation are obvious from claimant's own affidavit. These issues must be determined at trial.

Claimant's motion for summary judgment is, accordingly, denied.



August 23, 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 April 27, 2006;
  2. Affidavit of Edwin Lamage sworn to April 27, 2006 with exhibit;
  3. Affirmation of Frederick H. McGown, III dated May 31, 2006.

[1].Not otherwise identified.