This is a claim by Earl Coleman (hereinafter “claimant”) for
damages arising from the alleged negligence of defendant. The alleged
negligence occurred on May 7, 2007, at Eastern Correctional Facility, Napanoch,
According to claimant, a correction officer was pushing
claimant’s cell door closed with his foot. At the same time the door was
being closed, claimant was attempting to push the door open with his hand. The
door closed on claimant’s finger.
Claimant moves for summary
judgment pursuant to CPLR 3212
Summary judgment is a drastic remedy which deprives a party of its day
in court and should not be granted where there is any doubt as to the existence
of a material issue of fact (Moskowitz v Garlock
, 23 AD2d 943; Epstein
, 99 AD2d 713). The Court's function is to determine if an issue
exists. In doing so, the Court must examine the proof in a light most favorable
to the party opposing the motion. Summary judgment may only be granted if
movant provides evidentiary proof in admissible form to demonstrate that there
are no questions of fact (Winegrad v New York Univ. Med. Center
, 64 NY2d
851; Wanger v Zeh
, 45 Misc 2d 93, aff'd
26 AD2d 729). Once the
movant has demonstrated a prima facie entitlement to summary judgment as a
matter of law, the burden shifts to the opposing party to submit evidentiary
proof in admissible form sufficient to create an issue of fact or demonstrate an
acceptable excuse for his failure to submit such proof (Alvarez v Prospect
, 68 NY2d 320). Mere conclusions, speculation or expressions of hope
are insufficient to defeat the motion (Amatulli v Delhi Constr. Corp.
In the instant matter, claimant has failed to set forth evidence
in an admissible form.
Based upon the foregoing, claimant’s motion
for summary judgment is denied.
.The following papers were read and considered
on claimant’s motion: Notice of Motion for Summary Judgment dated October
2, 2007 and filed October 5, 2007; Affidavit in Support of Motion for Summary
Judgment of Earl Coleman with annexed Exhibits sworn to October 2, 2007 and
filed October 5, 2007; Affirmation in Opposition to Motion for Summary Judgment
of Michael W. Friedman, Esq. with annexed Exhibit A dated November 5, 2007 and
filed November 7, 2007.