New York State Court of Claims

New York State Court of Claims

CODY v. THE STATE OF NEW YORK, #2009-033-335, Claim No. 113570, Motion Nos. M-75610, CM-75814


Synopsis



Case Information

UID:
2009-033-335
Claimant(s):
THOMAS CODY
Claimant short name:
CODY
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
113570
Motion number(s):
M-75610
Cross-motion number(s):
CM-75814
Judge:
James J. Lack
Claimant’s attorney:
Hofmann & AssociatesBy: Paul T. Hofmann, Esq.
Defendant’s attorney:
Betancourt, Van Hemmen, Greco & KenyonBy: Todd P. Kenyon, Esq.
Third-party defendant’s attorney:

Signature date:
March 25, 2009
City:
Hauppauge
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

This is a claim for damages arising from the alleged personal injuries of Thomas Cody (hereinafter “claimant”) sustained on April 20, 2006 as a result of a trip and fall while claimant was working on the Wantagh State Parkway Bridge, Wantagh, New York. Claimant fell as he stepped off the bottom rung of a ladder.[1]

Defendant moves for summary judgment to dismiss this matter pursuant to CPLR 3212[2]. Defendant argues there was no violation of the industrial code to support a violation of Labor Law §241(6). In addition, defendant argues that it did not sufficiently control claimant’s work to give rise to a violation of Labor Law §200.

Claimant opposes the motion and argues that a sufficient issue of fact exists to deny defendant’s motion. As part of his opposition, claimant includes a new affidavit for himself and another witness, as well as depositions from two other actions.

Defendant made a cross-motion to exclude the affidavits and the depositions from claimant’s motion[3].

Claimant argues the affidavits are included to clear up and bolster facts provided in claimant’s deposition.

The affidavits provided in claimant’s papers directly contradict portions of the prior deposition testimony of claimant and the witness. Clearly, this has been done to feign a factual issue to defeat defendant’s motion for summary judgment. The Court will disregard the affidavits (Kaplan v DePetro, 51 AD3d 730). Similarly, the Court will disregard the depositions of defendant’s witnesses from the other actions [CPLR 3117(c)].

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 v Scally, 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 Hosp., 68 NY2d 320). Mere conclusions, speculation or expressions of hope are insufficient to defeat the motion (Amatulli v Delhi Constr. Corp., 77 NY2d 525).

From the evidence presented to the Court, it is clear that significant issues of fact exist as to what “other debris” was present when claimant stepped down and the control of the job by defendant.

Based upon the foregoing, defendant’s motion for summary judgment is denied and defendant’s cross-motion to strike is granted.


Based upon the foregoing, defendant’s motion to dismiss and for summary judgment is denied.


March 25, 2009
Hauppauge, New York

HON. JAMES J. LACK
Judge of the Court of Claims




[1].Claimant has withdrawn his cause of action pursuant to Labor Law §240(1).
[2].The following papers were read and considered on defendant’s motion: Notice of Motion for Summary Judgment dated September 30, 2008 and filed October 1, 2008; Kenyon Affirmation in Support of Motion for Summary Judgment with annexed Exhibits A-F dated September 30, 2008 and filed October 1, 2008; Memorandum of Law in Support of Defendant State of New York’s Motion for Summary Judgment dated September 30, 2008 and received October 1, 2008; Affirmation of Counsel in Opposition to the Motion for Summary Judgment of Paul T. Hofmann, Esq. with annexed Exhibits 1-20 dated October 30, 2008 and filed October 31, 2008; Plaintiff’s Memorandum of Law in Opposition to Defendant’s Motion for Summary Judgment dated October 30, 2008 and received October 31, 2008.
[3].The following papers have been read and considered on defendant’s cross-motion: Notice of Cross Motion to Strike dated November 11, 2008 and filed November 12, 2008; Reply Memorandum of Law in Support of Defendant State of New York’s Motion for Summary Judgment and in Support of Cross Motion dated November 11, 2008 and received November 12, 2008; Affirmation in Opposition to Motion to Strike of Paul T. Hofmann, Esq. with annexed Exhibits 21-25 dated November 20, 2008 and filed November 25, 2008.