New York State Court of Claims

New York State Court of Claims

CANTEY v. THE STATE OF NEW YORK, #2008-030-525, Claim No. 114505, Motion No. M-74787


Synopsis


Inmate claimant’s motion for summary judgment denied. Claim alleges he suffered personal injury in a trip and fall caused by a court officer’s incorrect technique in “rear hand-cuffing” him as he was escorted to a court appearance. Claimant did not meet initial burden on motion. No evidentiary submissions on motion; no discovery has been had

Case Information

UID:
2008-030-525
Claimant(s):
THEODORE CANTEY
1 1.The caption has been amended to reflect the only proper defendant
Claimant short name:
CANTEY
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :
The caption has been amended to reflect the only proper defendant
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
114505
Motion number(s):
M-74787
Cross-motion number(s):

Judge:
THOMAS H. SCUCCIMARRA
Claimant’s attorney:
THEODORE CANTEY, PRO SE
Defendant’s attorney:
HON. ANDREW M. CUOMO, NEW YORK STATE ATTORNEY GENERAL
BY: JOHN M. HUNTER, ASSISTANT ATTORNEY GENERAL
Third-party defendant’s attorney:

Signature date:
May 28, 2008
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)

.
Decision

The following papers were read and considered on claimant’s motion for summary


judgment:

1-4 Notice of Motion for Summary Judgment; Affidavit in Support of Summary Judgment by Theodore Cantey, claimant; Verification; Affidavit of Service

  1. Affirmation in Opposition by John M. Hunter, Assistant Attorney General
  1. Filed papers: claim, answer
Theodore Cantey alleges in his claim that on September 18, 2006 defendant’s agents caused him to trip, fall and suffer personal injuries because of their negligent failure to utilize proper techniques for escorting an individual who is rear hand-cuffed. Specifically, when a court officer escorted Mr. Cantey - who was rear hand-cuffed at the time - to a court appearance from the holding area, he tripped and fell on the first of three to four steps, receiving a contusion on the right side of his eye.

The claim was filed in the office of the chief clerk of the court of claims on November 19, 2007 and, according to an affidavit of service appended to the claim, mailed to the “Department of Law, Capitol Building, Albany, N.Y 12224.” In its answer, in addition to general denials, the defendant raises six affirmative defenses.

The present motion seeks summary judgment against the State of New York in the amount of $100,000.00. Other than claimant’s own arguments that the defendant’s agent was negligent, no evidentiary submissions have been made in support of his motion.
DISCUSSION AND CONCLUSION
Civil Practice Law and Rules §3212(b) provides in pertinent part:
. . . A motion for summary judgment shall be supported by affidavit, by a copy of the pleadings and by other available proof, such as depositions and written admissions. The affidavit shall be by a person having knowledge of the facts; it shall recite all the material facts; and it shall show that there is no defense to the cause of action or that the cause of action or defense has no merit. The motion shall be granted if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party . . . the motion shall be denied if any party shall show facts sufficient to require a trial of any issue of fact.


Once the proponent of the motion has made a prima facie showing of entitlement to judgment as a matter of law by proffering sufficient evidence to eliminate any genuine, material, issues of fact, the party in opposition to the motion for summary judgment must tender evidentiary proof in admissible form to establish the existence of material issues that require a trial. Winegrad v New York University Medical Center, 64 NY2d 851 (1985); Zuckerman v City of New York, 49 NY2d 557 (1980).

“[R]egardless of the sufficiency of the opposing papers . . . (citation omitted),” however, in the absence of admissible evidence sufficient to preclude any material issue of fact, summary judgment is unavailable. Alvarez v Prospect Hosp., 68 NY2d 320, 324 (1986); see also Ayotte v Gervasio, 81 NY2d 1062, 1063 (1993). Here, claimant has not tendered proof in admissible form establishing his entitlement to judgment as a matter of law in the first instance. All that he has stated is that the defendant’s agent was negligent, and that such negligence caused him to suffer injury. See Ayotte v Gervasio, supra at 1063.[2] As noted by defendant, the mere happening of an accident does not mean that the defendant should be held liable in the absence of negligence. [Affirmation in Opposition by John M. Hunter, Assistant Attorney General, ¶4].

Clearly, in the present case, where there has been no discovery, all that has been presented are issues of fact requiring a plenary trial as to the adequacy of any measures taken to properly escort this claimant, not susceptible to resolution on a motion for summary judgment. Having not met his initial burden on the motion accordingly, claimant’s motion for summary judgment is in all respects denied.


May 28, 2008
White Plains, New York

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




[2]. “Here, in support of their summary judgment motion, movants merely assert that defendant’s negligent operation of his vehicle was the sole proximate cause of plaintiff’s injuries and that no triable issues of fact existed. These conclusory assertions are insufficient to demonstrate the absence of any material issues of fact.” Ayotte v Gervasio, supra at 1063.