New York State Court of Claims

New York State Court of Claims

Hapeman v. STATE OF NEW YORK, #2009-032-120, Claim No. 113064, Motion No. M-75363


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:
Franzblau Dratch, P.C.By: Brian M. Dratch, Esq.
Defendant’s attorney:
Hon. Andrew M. Cuomo, NYS Attorney GeneralBy: Thomas R. Monjeau, Assistant Attorney General, Of Counsel
Third-party defendant’s attorney:

Signature date:
March 31, 2009

Official citation:

Appellate results:

See also (multicaptioned case)


This claim arises out of an incident which occurred on April 19, 2006, at the Franklin Correctional Facility. Claimant, an inmate, alleges to have been seriously injured while cutting plexi-glass as part of his work as a carpenter on an assigned project for the correctional facility. Claimant alleges that the accident occurred as a result of Defendant’s negligence in failing to properly instruct Claimant in the proper manner of cutting plexi-glass and in the proper utilization of the instrument provided for that purpose. He further alleges that Defendant was negligent in providing Claimant with a table saw that was antiquated, defective and not suitable for the purpose intended; in denying Claimant’s requests for adequate replacement of the blade; and in failing to properly inspect the tools, implements and equipment provided to Claimant. Claimant has moved for an order granting him summary judgment on the issue of liability. Defendant opposes the motion on the basis that Claimant has failed to comply with the requirements of CPLR § 3212 (b), and that beyond Claimant’s failure to comply with the necessary procedural requirements of a motion for summary judgment, his submissions fail to demonstrate that there are no material issues of fact that must be determined by a finder of fact.

Summary judgment is a drastic remedy which should not be granted unless it is clear that there are no triable issues of fact (Andre v Pomeroy, 35 NY2d 361, 364 [1974]). The court’s function in a motion for summary judgment is not to resolve issues of fact, but to determine whether issues of fact exist (Barr v County of Albany, 50 NY2d 247 [1980]). The proponent of a motion for summary judgment must make a prima facie entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact (Alvarez v Prospect Hosp., 68 NY2d 320 [1986]). Failure to make such a showing requires denial of a summary judgment motion, regardless of the sufficiency of the opposing party’s papers (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]). Once this showing has been made, the burden shifts to the opponent of the motion to produce evidentiary proof, in admissible form, sufficient to establish the existence of material issues of fact which require a trial of the action (Alvarez, 68 NY2d 320; Winegrad, 64 NY2d 851; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). The evidence must be viewed in the light most favorable to the opponent of the motion, and that party should be given every favorable inference (see McKinnon v Bell Sec., 268 AD2d 220 [1st Dept 2000]).

CPLR § 3212 (b) states that a motion for summary judgment shall be supported by an affidavit, by a copy of the pleadings and by other available proof, such as depositions and written admissions. It further states that the affidavit shall be by a person having knowledge of the facts, that it shall recite all the material facts, and shall show that there is no defense to the cause of action or that the cause of action or defense has no merit (CPLR § 3212 [b]). A conclusory affidavit or an affidavit by an individual without personal knowledge of the facts does not establish a proponent’s prima facie burden (JMD Holding Corp. v Congress Fin. Corp., 4 NY3d 373 [2005]; Vermette v Kenworth Truck Co., 68 NY2d 714 [1986]). A movant’s failure to include relevant pleadings in his motion warrants a denial of summary judgment (Senor v State of New York, 23 AD3d 851 [3d Dept 2005]).

In the present case, Claimant’s moving papers include an Attorney Affirmation in Support and two copies of the deposition transcript of Claude A. Schneider, a maintenance supervisor with the New York State Department of Correctional Services, who was not present at the time the accident occurred and, therefore, did not have personal knowledge of the facts. They do not include an Affidavit by Claimant or a copy of Claimant’s deposition transcript, even though said transcript and other documents were referenced in the Attorney’s Affirmation. They also do not include a copy of the pleadings. Notably, where Claimant’s Attorney subsequently included a copy of the pleadings in his Reply Affirmation, he does not attach an Affidavit of the Claimant or a copy of Claimant’s deposition transcript to said Reply Affirmation, even though the omission of both was referenced in Defendant’s Affirmation in Opposition.

The failure to include a copy of the pleadings, an Affidavit of Claimant and Claimant’s deposition transcript is, as set forth above, fatal to establishing Claimant’s prima facie burden of entitlement to summary judgment (Senor v State of New York, 23 AD3d 851 [3d Dept 2005]). Even if the Court were to consider Claimant’s subsequent inclusion of the pleadings, specifically the Notice of Claim, Verified Answer, Verified Bill of Particulars and some photographs, his failure to include an Affidavit of Claimant and/or a copy of Claimant’s deposition transcript or some other proof, precludes this Court from finding that Claimant has complied with the mandatory provisions of CPLR § 3212 (b) and requires it to deny Claimant’s motion for summary judgment.

However, even if this Court were to address Claimant’s motion on the merits, it is still constrained to deny summary judgment, as the documents submitted in support of the motion do not demonstrate that there are no material issues of fact to be determined by the Court, as required by CPLR § 3212 (b).

Claimant’s moving papers reference the deposition of Claimant and indicate that he testified to having limited training when he began working as a carpenter at Work Control, and that there were many instances where tools and accessories were over-used, worn out, faulty, and as a result, unsafe. The moving papers indicate that the accident occurred while Claimant was trying to cut three layers of plexi-glass (Lexan) on a table saw. In support of his motion, Claimant annexed and referenced the deposition of Claude Schneider, who was the supervisor of the workshop in which Claimant was working. Mr. Schneider testified to the proper procedures to be followed for obtaining material to be cut and for the cutting of material. He testified that if proper procedures are followed, an inmate will not be able to cut Lexan on a table saw without the knowledge, permission and consent of State employees, and that one of said employees would have to watch the inmate work. He further testified that stacking three pieces of Lexan together to run through the saw would be in contravention of safe practices and procedures.

Claimant argues that summary judgment is warranted because if proper procedures had been followed, then the accident would not have occurred. However, as Defendant raises in its Affirmation in Opposition, there are questions regarding whether Claimant caused or contributed to his own injuries, which clearly indicate the existence of material issues of fact. Specifically, Defendant notes that Mr. Schneider’s testimony indicates that at the time Claimant was using the table saw, there was a visible sign on the table which directed workers not to use the saw to cut plastic. In support of this statement, he attaches a photograph of that table saw (see Exhibit C of Defendant’s Affirmation in Opposition). This raises a question as to whether Claimant ignored or violated the rules of the shop, which caused or contributed to the injuries he sustained. Defendant also points out that Claimant’s stacking of three pieces of plastic together on the table saw may have been inappropriate and done by Claimant simply to shortcut his duties. Defendant submits an Affidavit of Mr. Schneider which confirms the same and details the training provided to Claimant. In addition, it provides copies of forms executed by Mr. Schneider and Claimant confirming the training provided and the determination that Claimant was qualified to use the specific pieces of equipment. Mr. Schneider indicates that he trained Claimant as to the safety and security procedures that are in place in the Work Control carpenter’s shop, and that Claimant was aware of the fact that he was not allowed to cut Lexan or any other plastic material on the table saw because Mr. Schneider had informed him of such prohibition. Mr. Schneider further indicated that if Claimant had forgotten that he was not allowed to cut Lexan on the table saw, there was a clearly visible sign on the table saw and that his injury was due to his failure to follow the safety rules and procedures.

Based on the foregoing, this Court finds that material issues of fact exist. Accordingly, Claimant’s motion for summary judgment must be and hereby is denied.

March 31, 2009
Albany, New York

Judge of the Court of Claims

Papers Considered:

  1. Notice of Motion and Affirmation in Support of Brian M. Dratch, Esq., dated July 31, 2008, along with Exhibits A-B.
  1. Affirmation in Opposition of Thomas R. Monjeau, AAG, dated October 22, 2008, and Affidavit of Claude A. Schneider, sworn to October 15, 2008, along with Exhibits A-C.
  1. Reply Affirmation of Brian Dratch, Esq., dated November 3, 2008, along with Exhibits A-D.