New York State Court of Claims

New York State Court of Claims

COMBES v. THE STATE OF NEW YORK, #2007-028-517, Claim No. 109385, Motion Nos. M-72180, M-72181


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-72180, M-72181
Cross-motion number(s):

Claimant’s attorney:
Defendant’s attorney:
BY: Carol A. Cocchiola, Esq.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
January 16, 2007

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read on Claimant’s motions for reconsideration of a prior Decision and Order of this Court (Motion No. M-72180) and for “a timetable upon defendant in considering Claimant’s settlement proposal” (Motion No. M-72181):

Motion M-72180

1. Affidavit in Support of George Combes, pro se, with annexed Exhibit

2. Affirmation in Opposition of Carol A. Cocchiola, AAG

Motion No. M-72181

1. Motion papers of George Combes, pro se, with annexed Exhibit

2. Affirmation in Opposition of Carol A. Cocchiola, AAG

Motion Nos. M-72180 and M-72181

3. Reply Affidavit of George Combes, pro se

Filed papers: Claim; Answer; Decision and Order, Motion No. M-71295, August 11, 2006, Sise, P.J.

In a Decision and Order filed on August 11, 2006, Claimant’s motion for summary judgment was granted in part and denied in part. The claim is based on allegations that on March 2, 2004, when Claimant was being held in voluntary protective custody at Elmira Correctional Facility, he was assaulted by another inmate, Victor Silvester, and that the State of New York was liable for his injuries because it negligently failed to separate voluntary protective custody inmates from involuntary protective custody inmates and because inmate Silvester’s past behavior put the State on notice that he was violent and would foreseeably cause harm to other inmates. With respect to the State’s liability, it was essentially conceded by Defendant and the record provided ample proof of the violent propensities of inmate Silvester. With respect to damages, however, this Court concluded that there was not adequate proof, in evidentiary form, from which the Court could determine the extent of Claimant’s injuries so as to make an appropriate award. The parties were directed to complete discovery necessary for trial on damages and to inform the Court, in writing, when the matter was ready for trial. Claimant’s request for a change of venue was also denied.

By the instant motion (M-72180), Claimant asks that the Court “re-open” the issue of damages and allow him to submit exhibits showing his cuts and bruises, his medical reports, and his listing of lost wages and claims of pain and suffering, including mental anguish. He has submitted no evidence or documentation that was not before the Court on the earlier motion.

Summary judgment is an inappropriate vehicle for determining damages in a personal injury claim, particularly since the Court’s findings will rely, in great part, on its determination of the credibility of witnesses (Goff v Clarke, 302 AD2d 725, 727 [3d Dept 2003]; Curanovic v New York Cent. Mut. Fire Ins. Co., 307 AD2d 435 [3d Dept 2003]). In addition, Claimant has failed to either establish that the Court overlooked or misapprehended the relevant facts or misapplied a controlling principle of law (Schneider v Solowey, 141 AD2d 813 [2d Dept 1988]; Foley v Roche, 68 AD2d 558 [1st Dept 1979]) or to provide new facts not offered on the prior motion that would change the prior determination (Alexy v Stein, 16 AD3d 989 [3d Dept 2005]; Matter of Beiny v Wynyard, 132 AD2d 190 [1st Dept 1987], lv dismissed 71 NY2d 994 [1988]), and thus is entitled to neither reargument or renewal of the prior motion (CPLR 2221).

Claimant also seeks an order from the Court to set a deadline for Defendant to accept, reject, or enter into settlement discussions. Counsel for Defendant indicates that settlement discussions would be premature as the State is seeking Claimant’s records from the Office of Mental Health and has requested that he provide a release for such records. In his reply affidavit, Claimant states that the effort to obtain his mental health records is futile since he “never turned to the mental health staff, because of his non-trust” (Combes Reply Affidavit, ¶ 5). It appears, therefore, that no more discovery is needed. Settlement of a lawsuit is a matter that must be left to the parties, although the courts may attempt to assist in settlement discussions if requested to do so by the parties. Consequently, it would be beyond the Court’s power and, in addition, inappropriate to impose any fixed deadline on the parties regarding whether there should be settlement discussions and, if so, when such discussions should take place. It can only be suggested that Claimant make a realistic written demand if he wishes to pursue settlement and that, upon receipt of such demand, that Defendant provide a response. Settlement discussions can take place at any time prior to trial.

Claimant’s motions are DENIED, but the matter will be marked as ready for trial on the issue of damages.

January 16, 2007
Albany, New York

Judge of the Court of Claims