New York State Court of Claims

New York State Court of Claims

LAMAGE v. THE STATE OF NEW YORK, #2007-015-180, Claim No. 110159, Motion No. M-72878


Inmate's motion for summary judgment was denied where he failed to establish that he was exposed to the gas utilized to extract another inmate from a nearby cell or that any such exposure was capable of causing the particular injury alleged.

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):
Cross-motion number(s):

Claimant’s attorney:
Edwin Lamage, Pro Se
Defendant’s attorney:
Honorable Andrew M. Cuomo, Attorney General
By: Belinda A. Wagner, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
April 16, 2007
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant moves pursuant to CPLR 3212 for an order granting partial summary judgment on his fourth cause of action alleging damages resulting from exposure to a chemical agent while incarcerated at Great Meadow Correctional Facility. Claimant alleges the following in his affidavit in support of the motion:
7) On November 3, 2004, while claimant was secured in B1-22 cell the defendants employee[s], security officers, activated chemical agent (gas) in B1-15 cell.

8) Before the defendant activated the chemical agent, the defendant did not evacuate claimant, did not remove claimant out of the B1-special housing unit, to another area within the facility, where claimant would have been secure and safe and not been subjected to the chemical agent.

In addition to the claimant's affidavit, his motion was supported by reference to the defendant's log book for November 3, 2004, which reflects the following entry at 5:05 p.m.: "Extraction team utilizing Chemical Agents" (see defendant's Response To Demand For Disclosure dated June 22, 2005, Exhibit "C"). The log book for this same date indicates that at 6:27 p.m. the claimant requested emergency sick call with complaints of chest pain and blurred vision. Interdepartmental correspondence confirms the use of a chemical agent in B1-15 cell, which was 7 cells away from the claimant's cell (see defendant's Response to Demand For Disclosure dated August 24, 2006, Exhibit "C", Interdepartmental Communication dated November 29, 2004). Claimant also submitted evidence that in a subsequent incident on January 3, 2005, a chemical agent was again used to remove an inmate from his cell; however, on that date, the defendant evacuated the inmates from the area prior to the use of the chemical agents.

In opposition to the claimant's motion, the defendant argues that the claimant failed to establish that evacuation of inmates from the nearby cells was required or that the claimant was exposed to the chemical agent complained of.

It is well established that " 'summary judgment is a drastic remedy and should not be granted where there is any doubt as to the existence of a triable issue' " (Rotuba Extruders v Ceppos, 46 NY2d 223, 231 [1978][citation omitted]). "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 eliminate any material issues of fact from the case" (Winegrad v New York Univ. Med. Center, 64 NY2d 851, 853 [1985]) . Once the movant has made the required showing, the burden shifts to the party opposing the motion "to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action" (Alvarez v Prospect Hospital, 68 NY2d 320, 324 [1986] citing Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).

Claimant failed to meet his initial burden of proof on his motion for summary judgment. "To prevail on a negligence claim, a plaintiff must establish the existence of a legal duty, a breach of that duty, proximate causation, and damages" (Luina v Katharine Gibbs School New York, 37 AD3d 555 [2007]). It is well settled that proof of a generally accepted practice within a particular trade or industry may tend to establish a standard of care, and proof of a departure from that practice may constitute evidence of negligence (Trimarco v Klein, 56 NY2d 98, 105-107 [1982]; see also Diaz v New York Downtown Hosp., 99 NY2d 542, 545 [2002]; Cruz v New York City Transit Auth., 136 AD2d 196, 199 [1988]). While the particular practice need not be universally observed, it must nonetheless be generally well defined within the particular field (Trimarco v Klein, supra, at 106). Here, claimant failed to establish that the evacuation of inmates from nearby cells prior to the use of a chemical agent was an accepted standard procedure in a prison setting. Evidence that the defendant evacuated the area on one occasion subsequent to the incident at issue fails to establish such a standard. Thus, the claimant failed to establish a breach of duty owed to the claimant.

In addition, in order to establish proximate cause for injuries allegedly resulting from exposure to toxic chemicals, it must be established "that the toxin is capable of causing the particular illness (general causation) and that plaintiff was exposed to sufficient levels of the toxin to cause the illness (specific causation)" (Parker v Mobil Oil Corp., 7 NY3d 434, 448 [2006]). Here, claimant submitted no evidence that he was either exposed to the chemical agent or that the unidentified chemical agent used by the defendant is capable of causing the symptoms alleged. As a result, the claimant failed to establish that the defendant's actions proximately caused the injuries alleged. Claimant's motion for summary judgment on his fourth cause of action is therefore denied.

April 16, 2007
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated January 22, 2007;
  2. Affidavit and Memorandum of Law of Edwin Lamage sworn to January 22, 2007;
  3. Affirmation of Belinda A. Wagner dated February 12, 2007 with exhibits.