New York State Court of Claims

New York State Court of Claims

MOJICA v. THE STATE OF NEW YORK, #2007-030-519, Claim No. 111314, Motion No. M-72772


Synopsis


Claimant’s motion to dismiss defense and for summary judgment denied. Claimant has not shown how the defense asserted lacks merit or is otherwise deficient. Claim alleges Green Haven Correctional Facility negligently allowed dangerous fitness equipment to be used at the facility, resulting in his serious injury. Specifically, Claimant alleges that he was injured when part of a forty (40) pound dumbbell he had lifted into the air detached, striking claimant in the forehead. Exhibits attached to moving papers simply show that there are issues of fact regarding the reason for claimant’s injury - including comparative fault - and the circumstances surrounding the alleged accident, requiring a trial.

Case Information

UID:
2007-030-519
Claimant(s):
KENNETH MOJICA
Claimant short name:
MOJICA
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
111314
Motion number(s):
M-72772
Cross-motion number(s):

Judge:
THOMAS H. SCUCCIMARRA
Claimant’s attorney:
KENNETH MOJICA, PRO SE
Defendant’s attorney:
HON. ANDREW M. CUOMO, NEW YORK STATE ATTORNEY GENERAL
BY: MARY B. KAVANEY, ASSISTANT ATTORNEY GENERAL
Third-party defendant’s attorney:

Signature date:
March 15, 2007
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

The following papers were read and considered on Claimant’s motion to dismiss


defendant’s affirmative defense and for summary judgment:

1,2 Notice of Motion to Dismiss Defendant’s Affirmative Defense; Affidavit in Support by Kenneth Mojica, Claimant and attached exhibits

  1. Affirmation in Opposition by Mary B. Kavaney, Assistant Attorney General and attached exhibits
4,5 Filed papers: Claim, Answer

Kenneth Mojica alleges in Claim Number 111314 that Defendant’s agents at Green Haven Correctional Facility (hereafter Green Haven) negligently allowed dangerous fitness equipment to be used at the facility, resulting in Claimant’s serious injury. [Claim Number 111314, ¶ 3]. Specifically, Claimant alleges that he was injured when part of a forty (40) pound dumbbell he had lifted into the air detached, striking claimant in the forehead. [Id.]. In its Answer, in addition to a general denial, the Defendant asserts the affirmative defense that any injuries or damages to claimant were caused in whole or in part by his own culpable conduct, or the culpable conduct of others for whom the State of New York has no legal responsibility.

An affirmative defense is raised in an Answer to provide adequate notice to the Claimant of issues of law or fact that the Defendant may raise at trial or in later motion practice. Cipriano v City of New York, 96 AD2d 817 (2d Dept 1983). Indeed, Civil Practice Law and Rules §3018(b), concerning responsive pleadings, provides in pertinent part that a “. . . party shall plead all matters which if not pleaded would be likely to take the adverse party by surprise or would raise issues of fact not appearing on the face of a prior pleading such as . . . collateral estoppel, culpable conduct . . . or statute of limitation. The application of this subdivision shall not be confined to the instances enumerated.”

Claimant has not shown how the defense asserted in the Answer lacks merit or is otherwise deficient.

A motion to dismiss such defenses may be made on the ground that “ . . . a defense is not stated or has no merit.” Civil Practice Law and Rules §3211(b). When evaluating such a motion, all of defendant’s allegations must be deemed to be true and defendant is entitled to all reasonable inferences to be drawn from the proof submitted. Capital Telephone Co. v Motorola Communications and Electronics, Inc., 208 AD2d 1150 (3d Dept 1994); Grunder v Recckio, 138 AD2d 923 (4th Dept 1988); 182 Fifth Avenue, LLC v Design Development Concepts, Inc., 300 AD2d 198 (1st Dept 2002); Arquette v State of New York, 190 Misc 2d 676, 688 (Ct Cl 2001). It is the movant who has the burden of coming forward and demonstrating that the defense cannot be maintained. Arquette v State of New York, supra at 688 (Ct Cl 2001). “. . .‘If there is doubt as to the availability of a defense, it should not be dismissed’. . . (citations omitted).” [Id.].

Here, claimant has alleged negligence in his claim, and the defendant has asserted a defense calling for evaluating comparative fault, as between claimant himself, any third party, such as for example any manufacturer of the allegedly defective equipment, or other inmates, and the State of New York. Claimant will be required to establish that the State had notice of the dangerous condition, either actual or constructive, because it is only those foreseeable dangerous conditions which are not remedied within a reasonable time which may establish liability on the State’s part, [Gordon v American Museum of Natural History,67 NY2d 836, 837 (1986)], assuming that proximate cause and actual damages are proven as well.

All of the exhibits to claimant’s moving papers - such as the affidavits from the various inmate witnesses to this incident - simply show that there are issues of fact regarding the reason for claimant’s injury and the circumstances surrounding the alleged accident, requiring a trial. [See Affidavit in Support, Exhibit C]. It is not enough to simply state, as does the claimant, that in providing a recreation area to inmates the defendant is required to assure that the equipment is in good working order: this just states what some aspects of the duty owed in negligence terms may be. What kind of notice of any defect there was, what actually happened during this particular incident as described by witnesses whose credibility has not been tested are all issues of fact, not susceptible to summary determination on the papers alone.

Just as it is claimant’s burden to establish all the elements of his claim, it will be defendant’s burden to establish its defense.

Accordingly, claimant’s motion to dismiss the affirmative defense and for summary judgment is in all respects denied.

March 15, 2007
White Plains, New York

HON. THOMAS H. SCUCCIMARRA
Judge of the Court of Claims