New York State Court of Claims

New York State Court of Claims

PETTUS v. THE STATE OF NEW YORK, #2008-044-502, Claim No. 112504, Motion No. M-74216


Lack of evidentiary facts in claimant’s affidavit concerning the force allegedly used against him and circumstances confronting correction officers during the altercation, along with existence of credibility issues, require denial of claimant's summary judgment motion in claim alleging assault by officers

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:
Defendant’s attorney:
HON. ANDREW M. CUOMO, ATTORNEY GENERALBY: Roberto Barbosa, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
January 11, 2008

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant, an inmate proceeding pro se, filed this claim (Claim No. 112504) against defendant State of New York (defendant), alleging that on April 8, 2005, unknown correction officers used excessive force against him during a strip search in the draft room at Elmira Correctional Facility (Elmira). Claimant has made several previous discovery motions in this action, including motions to compel defendant to provide photographs of five named correction officers and to require the individual officers to execute affidavits stating that claimant was not assaulted in the draft room on the day in question. For various reasons not relevant to this motion, the Court denied all of claimant’s previous motions. Claimant now moves for summary judgment. Defendant opposes the motion. Claimant replies.[1]

Initially, claimant has failed to include a copy of the pleadings which were served in this action. Accordingly, this motion could be denied solely on that basis (see CPLR 3212 [b]; Greene v Wood, 6 AD3d 976, 977 [2004]). However, due to the extensive motion practice which has already occurred regarding this claim, the Court is in possession of copies of the pleadings (see e.g. Stiber v Cotrone, 153 AD2d 1006, 1007 [1989], lv denied 75 NY2d 703 [1990]), and the record is “sufficiently complete” for the Court to overlook claimant’s procedural defect and address the merits of the motion (see Greene v Wood, supra; General Motors Acceptance Corp. v Albany Water Bd., 187 AD2d 894, 895 n [1992]).[2]

The proponent of a motion for summary judgment must present facts in evidentiary form which are sufficient to establish that party’s right to judgment as a matter of law (see generally Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). If the movant fails to meet his or her initial burden, however, the motion must be denied, regardless of the sufficiency of the opposing papers (id).

It is well settled that correction officers may use physical force to maintain order and discipline in correctional facilities, but “only such degree of force as is reasonably required shall be used” (Johnson v State of New York, Ct Cl, Sept. 26, 2005, Moriarity III, J., Claim No. 103185 [UID # 2005-037-507], quoting 7 NYCRR 251-1.2 [b]). The limited circumstances in which an officer may employ the use of force are set forth in 7 NYCRR 251-1.2, which states in pertinent part: “[a]n employee shall not lay hands on or strike an inmate unless the employee reasonably believes that the physical force to be used is reasonably necessary: for self-defense; to prevent injury to person or property; to enforce compliance with a lawful direction; to quell a disturbance; or to prevent an escape” (7 NYCRR 251-1.2 [d]).[3]

The mere fact that an altercation occurred (in which force was used and the claimant was injured) between a claimant and a correction officer is not sufficient in and of itself to establish liability (Patterson v State on New York, Ct Cl, Apr. 23, 2002, Minarik, J., Claim No. 105062, Motion No. M-64629 [UID # 2002-031-015]). The “[c]laimant must also demonstrate that the force used was unreasonable in light of the circumstances surrounding the altercation” (id.).

In his affidavit in support of this motion, claimant indicates that he has determined the identity of the five correction officers present in the draft room at the time of his assault, and states that he “will/would cross-examine [them] during trial (under oath of perjury).” Claimant further states that he showed his injuries to David Fruchter (apparently an Assistant Attorney General in the Albany Office) and that he will call Mr. Fruchter as a witness.[4] In support of his alleged damages, claimant attaches a portion of his medical record with entries from April 12, 2005 through April 21, 2005.[5]

Defendant contends that claimant has failed to met his burden of establishing that there are not factual issues to be resolved at trial. Defendant candidly and appropriately admits that based upon the pleadings before the Court, neither party is entitled to summary judgment.

Claimant’s motion must be denied. Notably, claimant’s affidavit does not recite any evidentiary facts of the alleged assault. Even if the Court were to assume the truth of claimant’s allegations, the fact that an altercation took place - during which force was used and claimant was injured - does not establish liability on the part of defendant. Claimant’s failure to provide evidence in admissible form concerning the force used during the alleged assault and the specific circumstances confronting the officers in the draft room on that day (see Wester v State of New York, 247 AD2d 468 [1998]; Lewis v State of New York, 223 AD2d 800 [1996]; Arnold v State of New York, 108 AD2d 1021 [1985], appeal dismissed 65 NY2d 723 [1985]) is fatal to his motion (see Alvarez v Prospect Hosp., supra; Patterson v State on New York, supra). Moreover, the credibility of the witnesses is often the dispositive factor in cases of alleged excessive force (see Davis v State of New York, 203 AD2d 234 [1994]), and defendant has consistently denied claimant’s allegations. Because credibility issues are not properly resolved on a motion for summary judgment (see generally Goff v Clarke, 302 AD2d 725 [2003]; Walts v Badlam, 214 AD2d 875 [1995]), the Court cannot determine whether it was necessary for the correction officers to use force against claimant, and if so, whether the force used was excessive or unreasonable under the circumstances (see Wester v State of New York, supra). Accordingly, claimant’s motion for summary judgment is denied in its entirety.[6]

January 11, 2008
Binghamton, New York

Judge of the Court of Claims

The following papers were read on claimant’s motion:

1) Notice of Motion filed on November 19, 2007; “Affidavit/Affirmation” of James Pettus sworn to on November 15, 2007, and attached exhibits.

2) Affirmation in Opposition of Roberto Barbosa, AAG, dated November 30, 2007.

3) Notice of Motion filed on November 23, 2007; “Affidavit/Affirmation” of James Pettus sworn to on November 13, 2007.

Filed papers: Claim filed on July 6, 2006; Verified Answer filed on July 21, 2006.

[1]. On November 23, 2007, after defendant's response to this motion for summary judgment, claimant filed a Notice of Motion which sought “an order granting this motion to answer summary judgment within (60) day’s [sic] pursuant to Rules of the Court 202.8 and CPLR 2219.” Notwithstanding claimant’s inappropriate citation to the Uniform Rules for Supreme Court, claimant is apparently requesting only that the Court determine his motion within 60 days after its submission. Accordingly, the Court will treat that “notice of motion” and affidavit as a reply.
[2]. As defendant correctly notes, claimant has inappropriately cited CPLR 3211 (c) in his notice of motion filed on November 19, 2007 as the basis for this summary judgment motion. Notwithstanding that CPLR 3211 (c) is inapplicable to this motion, it is readily apparent that claimant is seeking summary judgment on his cause of action pursuant to CPLR 3212 (a), and the Court will address the motion accordingly.
[3]. Claimant alleges that he “was assaulted by unknown corr[ection] officers sustaining bruises on left-side of [his] body.” Because claimant does not specifically address the use of a weapon (see 7 NYCRR 251-1.2 [e]), the Court will treat his allegation of excessive force as involving only the use of bodily physical force.
[4]. Given that claimant anticipates a trial in this matter, it unclear why he argues that summary judgment is appropriate at this stage in the litigation.
[5]. Interestingly, the entry dated April 12, 2005 indicates that as a result of chronic dizziness, claimant fell in his cell and injured his back. There is no reference to an alleged assault by any staff member.
[6]. Further, claimant supplied uncertified and unsworn medical records which are inadmissible hearsay, and therefore not properly considered on this motion for summary judgment. The motion could also be denied on that basis.