New York State Court of Claims

New York State Court of Claims

RASCOE v. THE STATE OF NEW YORK, #2009-038-548, Claim No. 112145, Motion No. M-76215


Synopsis


Claimant’s “Amended” motion for summary judgment denied. Successive motions for summary judgment not proper absent showing of newly discovered evidence or other sufficient cause for successive motion

Case Information

UID:
2009-038-548
Claimant(s):
RONALD RASCOE
Claimant short name:
RASCOE
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
112145
Motion number(s):
M-76215
Cross-motion number(s):

Judge:
W. BROOKS DeBOW
Claimant’s attorney:
RONALD RASCOE, Pro se
Defendant’s attorney:
ANDREW M. CUOMO, Attorney General of the State of New York
By: Glenn C. King, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
June 17, 2009
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)

.
Decision

Claimant, an individual incarcerated in a State correctional facility, filed this claim seeking damages for injuries he sustained when he was allegedly assaulted by another inmate. Claimant’s prior motion for summary judgment was denied by this Court earlier this year (Rascoe v State of New York, UID #2009-038-504, Claim No. 112145, Motion No. M-75787, DeBow, J. [Jan.12, 2009]). Claimant now makes this motion “Amended Motion for Summary Judgment” on the claim; the motion is opposed by defendant. At the threshold, it must be noted that claimant’s opportunity to submit a motion for summary judgment as of right was exercised upon his first motion for summary judgment, and the fact that he did not submit sufficient and adequate proof in support of his first motion for summary judgment does not allow a successive motion. “Multiple summary judgment motions in the same action should be discouraged in the absence of a showing of newly discovered evidence or other sufficient cause” (LaFreniere v Capital Dist. Transp. Auth., 105 AD2d 517, 518 [3d Dept 1984]; see 2009 85th Street Corp. v WHCS Real Estate Ltd. Partnership, 292 AD2d 520 [2d Dept 2002]). Claimant does not offer any newly discovered evidence, nor does he establish any other sufficient cause. Thus, the motion is denied on that ground.

Moreover, even if the Court were to address the merits of the motion, claimant has failed to establish his prima facie entitlement to judgment as a matter of law, as claimant has failed to submit admissible evidence demonstrating that the attack by another inmate was reasonably foreseeable (see Rascoe v State of New York, supra; see also Sanchez v State of New York, 99 NY2d 247, 252 [2002]). Therefore, the motion would be denied as claimant has once again failed to establish, by admissible proof, the right to judgment as a matter of law (Alvarez v Prospect Hospital, 68 NY2d 320, 324 [1986]). Accordingly, it is

ORDERED, that Motion No. M-76215 is DENIED.

June 17, 2009
Albany, New York

HON. W. BROOKS DEBOW
Judge of the Court of Claims


Papers considered
:


(1) Claim No. 112145, filed March 29, 2006;

(2) Notice of Motion, dated January 30, 2009;

(3) Affidavit in Support of Amended Motion for Summary Judgment, sworn to January 30, 2009, with untitled memorandum and Exhibits A-D;

(4) Affirmation of Glenn C. King, dated February 25, 2009.

(5) Rascoe v State of New York, UID #2009-038-504, Claim No. 112145, Motion No. M-75787,

DeBow, J. (January 12, 2009).