New York State Court of Claims

New York State Court of Claims

PROSANO v. THE STATE OF NEW YORK, #2009-044-535, Claim No. 114556, Motion No. M-76340


Synopsis


Claimant’s motion to preclude based on spoliation of evidence denied. Claimant’s motion for summary judgment also denied.

Case Information

UID:
2009-044-535
Claimant(s):
PAUL PROSANO and CHRISTINE PROSANO
Claimant short name:
PROSANO
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
114556
Motion number(s):
M-76340
Cross-motion number(s):

Judge:
CATHERINE C. SCHAEWE
Claimant’s attorney:
RONEMUS & VILENSKYBY: Michael B. Ronemus, Esq., of counsel
Defendant’s attorney:
HON. ANDREW M. CUOMO, ATTORNEY GENERALBY: Joseph F. Romani, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
July 8, 2009
City:
Binghamton
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

By Decision and Order dated November 19, 2007 (Prosano v State of New York, Ct Cl, Nov. 26, 2007, Claim No. None, Motion No. M-73732), this Court granted claimants permission to file and serve a late claim to recover for personal injuries allegedly received when, while an inmate in the custody of the Department of Correctional Services (DOCS) at Sullivan Correctional Facility (Sullivan), claimant[1] was struck on the head by a pole, in the shape of an upside-down “L” (the Support Apparatus), which was supporting a 400-pound punching bag. Defendant answered the amended claim[2] and asserted several affirmative defenses. The parties conducted discovery. Claimants now move for summary judgment on the issue of liability. Defendant opposes the motion.

Claimants argue that defendant’s destruction of the Support Apparatus, in combination with loss of original photographs of the Support Apparatus taken immediately after the incident, constitutes spoliation of key evidence.[3] Claimants contend that, as a sanction, defendant should be precluded from introducing any evidence of the condition of the Support Apparatus prior to the accident. Claimants further contend that based upon their prima facie showing of entitlement to judgment as a matter of law, summary judgment on the issue of liability should be granted.

Conversely, defendant argues that the Support Apparatus was retained at Sullivan’s maintenance department for approximately four months after the accident, and its destruction thereafter was in good faith and in accordance with the State’s normal business practices. Defendant further notes that neither a notice of intention to file a claim nor a claim was served within the 90-day period set forth in Court of Claims Act § 10 (3), and the State therefore had no notice of possible litigation until approximately 1½ years after the incident, when claimants made their motion for permission to late file and serve a claim.

It is undisputed that on March 19, 2006, claimant was injured when the Support Apparatus broke and hit the back of his head as it fell to the ground. There is also no question that defendant took pictures of the Support Apparatus immediately after the accident, and then removed both the Support Apparatus and punching bag from the yard. Further, approximately four months after the incident, the Support Apparatus was removed from Sullivan and taken to a landfill. The original photographs of the Support Apparatus have also apparently been lost or destroyed.[4]

In support of this motion, claimants submitted claimant’s deposition testimony as well as that of several DOCS employees and inmates. Claimant testified that the punching bag hung from the Support Apparatus, which was anchored in a concrete pad located in the recreation yard and exposed to the elements. According to claimant, the paint was coming off the Support Apparatus in clumps, and he could see corrosion on the metal. As a result, he made several requests that the Support Apparatus be painted and refurbished. He indicated that while he was punching the bag, the Support Apparatus snapped, at a point approximately 2 ½ feet above the ground, and struck him as it fell. Claimant noted that a replacement apparatus (the Replacement Apparatus) had been attached to the 2½ foot section of the Support Apparatus which remained in the concrete pad.

Claimant said he had noticed the corroded condition of the Support Apparatus during the several months prior to his accident, but admitted that he nonetheless continued to use the punching bag every day. Claimant stated that even though he had not expected the Support Apparatus to break without any warning, he used bad judgment in continuing to use the punching bag and that “[he will] take responsibility for that.”[5]

Andrew Dressel, a correction officer, stated in his deposition that he was working in the recreation yard on the day of claimant’s accident, and witnessed the entire event. Dressel was watching claimant using the punching bag when Dressel saw the bag fall to the ground. At first, he thought the bag had fallen off the Support Apparatus, but then he realized that it was the upright portion of the Support Apparatus which broke a few feet above the ground. He saw the Support Apparatus fall and hit claimant in the head. Dressel stated that he told another correction officer to call a “code blue,”[6] and then went to assist claimant. According to Dressel, claimant had a laceration on the back of his head and he appeared to be in excruciating pain. Dressel accompanied claimant to the medical unit at Sullivan, and thereafter transported him to an outside hospital for treatment.

Dressel had also prepared a sketch of the Support Apparatus and punching bag, and described the Support Apparatus as consisting of an L-shaped pole where the vertical (or upright) portion slipped into a flange (or sleeve) that had been set into a concrete pad. He stated that the Support Apparatus was spot-welded to the flange, toward the top of the flange where the two pieces of metal met. Dressel noted that the Support Apparatus broke where it was welded to the flange. Dressel saw the Support Apparatus after the incident, and noted that the upright portion was rusted where it came out of the flange. He also indicated that because of its weight, three people were required to carry the Support Apparatus and punching bag out of the yard.

Dennis Harris, the Recreation Supervisor at Sullivan, stated that he or one of his staff visually inspected the recreation equipment in the yard every day. The Support Apparatus was apparently installed by the facility maintenance staff in 1988 or 1989. Harris testified that his inspections of the Support Apparatus prior to the incident indicated that it showed some surface corrosion through the gray paint, but “[i]t was nothing major.”[7] After the incident, Harris noticed a little bit of surface rust on the upright portion of the Support Apparatus which remained in the ground, but said that it appeared to be a “clean break.”[8]

Paul Lepke, a Maintenance Supervisor 3, testified that he has been a civilian employee at Sullivan since 2003. Although he had seen the Support Apparatus on numerous occasions while it was in the recreation yard, he had never inspected it. He also stated that preventative maintenance was not performed on any recreation equipment in the yard, but rather that equipment was only repaired or replaced when necessary, pursuant to work orders. Lepke indicated that after it broke, the Support Apparatus was transported to the maintenance department and remained there until the determination was made to install the Replacement Apparatus. Harris believed this decision occurred in July 2006, and at that time, the Support Apparatus was considered scrap metal, and taken to the Monticello landfill.

Lepke inspected the Support Apparatus while it was in the maintenance department after the accident, and opined that it had metal fatigue from the stress of standing upright. Lepke stated a frame had been placed around the portion of the Support Apparatus that remained in the concrete, and the Replacement Apparatus had been constructed and installed by attaching it to this frame. However, in spring 2008, the Replacement Apparatus as well as other equipment was removed from the recreation yard, and the entire area blacktopped in anticipation of erecting new recreational equipment.

Felipe Milan, a fellow inmate, also testified at an examination before trial. Milan worked as a welder both prior to entering prison and while he was housed at Eastern Correctional Facility, prior to his transfer to Sullivan. Apparently because of his welding experience, Sullivan’s civilian welding instructor asked Milan to repair some of the exercise weights and equipment in the yard. Approximately six months before the incident, Milan noticed that the upright portion of the Support Apparatus was rusted. Approximately three months before claimant’s accident, Milan reported the condition to Mr. Wilson, a civilian employee in charge of maintenance. Two weeks prior to the incident, Milan saw Wilson and again inquired about the situation. At that time, Wilson apparently told Milan that there was a work order in place to fix the Support Apparatus. Milan opined that the Support Apparatus, which was cast iron, was rusted because it was continually exposed to the weather. He confirmed that the Replacement Apparatus was installed by welding it to the 2½-foot portion of the Support Apparatus that remained in the ground.

Claimant has also submitted an “affidavit” of Felix Merced, another inmate in the welding program at Sullivan. In that affidavit, Merced stated that he observed corrosion on the Support Apparatus, although he candidly indicated that he could not determine the extent of such corrosion because it was covered with a bubbled coating of paint. When Merced informed Wilson of the corrosion, Wilson apparently indicated that he was aware of the situation. Merced also assisted in constructing the Replacement Apparatus, which he asserted is sound and competently built. However, Merced opined that attachment of the Replacement Apparatus to the corroded portion of the Support Apparatus which remained in the ground was not safe, because the entire structure “can only be as strong as it’s [sic] weakest component.”

Claimants further provided the affidavit of Richard F. Lynch, who possesses a Ph.D. in Metallurgy and Materials Science. In arriving at his opinion, Lynch reviewed the deposition testimony discussed previously, as well as diagrams of the Support Apparatus. He states that both the destruction of the Support Apparatus and the loss of the photographs taken immediately after the accident, prevent a full investigation into the condition of the Support Apparatus at the time it failed and struck claimant. However, in spite of his inability to inspect or test the Support Apparatus, Lynch concludes that:

the pole broke as the result of the fact that the spot welds which held the pole to the base were insufficient to support the pole, most likely due to the weakening by progressive fatigue fracture. Furthermore the pole was in a degraded condition caused by red rust corrosion which further weakened the pole and the four spot welds in particular. The pole was rusted from being kept outside in the rain and not properly maintained . . . [and] based upon a reasonable degree of engineering certainty . . . the subject pole was in a dangerous and hazardous condition at the time of [claimant’s] accident and had been in such a dangerous and hazardous condition for a significant period of time so that the defendant’s employees were or should have been aware of the condition.[9]


Lynch also opines that a reasonable inspection of the Support Apparatus would have revealed the dangerous condition which caused the collapse and injury to claimant.

It is well settled that the Court “ha[s] discretion to impose sanctions under CPLR 3126 when a party intentionally, contumaciously or in bad faith fails to comply with a discovery order or destroys evidence prior to an adversary’s inspection” (Puccia v Farley, 261 AD2d 83, 85 [1999]; see also Jones v General Motors Corp., 287 AD2d 757, 759 [2001]). The Court may also sanction a party who negligently alters, loses or destroys crucial evidence (Cummings v Central Tractor Farm & Country, 281 AD2d 792, 793 [2001], lv dismissed 96 NY2d 896 [2001]). In some instances, dismissal may be necessary “as a matter of elementary fairness” (Puccia v Farley, supra), while in other cases, the less drastic remedy of preclusion may be appropriate (see Santos v State of New York, Ct Cl, Sept. 23, 2002, Mignano, J., Claim No. 102473, Motion No. M-64661 [UID # 2002-029-216]). However, in situations “[w]here the parties are equally prejudiced by the loss of the evidence,” the imposition of any sanction may be inappropriate (Davis v State of New York, Ct Cl, Mar. 11, 2008, Collins, J., Claim No. 112476, Motion No. M-74409 [UID # 2008-015-021]; see also McLaughlin v Brouillet, 289 AD2d 461 [2001]).

In this instance, the Court finds that defendant’s destruction of the Support Apparatus does not warrant sanctions. Although defendant was clearly aware of the incident and claimant’s resulting injury, claimants did not give any indication that they were considering litigation by either timely serving a notice of intention to file a claim or timely filing and serving a claim. Further, defendant disposed of the Support Apparatus pursuant to its normal business practice, approximately four months after the incident. More importantly, claimants’ expert apparently had sufficient information to render an opinion1[0] with “a reasonable degree of engineering certainty,” that the Support Apparatus had been in a dangerous condition for such a period of time that defendant’s employees should have discovered it, that the Support Apparatus broke as a result of this condition, and that it struck claimant, causing his injuries. Moreover, even though the original photographs of the Support Apparatus appear to be missing, photocopies of those photographs are available. Given that the loss of evidence does not appear to be fatal to claimants’ ability to prove their case, sanctions against defendant are not appropriate (see Cummings v Central Tractor Farm & Country, supra). That portion of claimants’ motion seeking preclusion is therefore denied.

The Court must now address claimants’ motion for summary judgment. On a motion for summary judgment, the moving party must present evidence in admissible form which establishes its right to judgment as a matter of law, while the opposing party must present proof that demonstrates the existence of a factual issue (Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1067-1068 [1979]). If the movant does not meet its burden, the motion must be denied regardless of the sufficiency of the opposing papers (see generally Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). Moreover, for the purposes of a summary judgment motion, the factual allegations of the opposing party must be deemed true and be granted every favorable inference (Bershaw v Altman, 100 AD2d 642, 643 [1984]).

It is well established that the State has a duty to maintain its facilities in a reasonably safe condition (Preston v State of New York, 59 NY2d 997 [1983]). However, the State is not an insurer of the safety of its inmates, and negligence cannot be inferred solely from the occurrence of an accident (see Killeen v State of New York, 66 NY2d 850 [1985]; Condon v State of New York, 193 AD2d 874 [1993]). To prevail on this motion for summary judgment, claimants must prove that a dangerous condition existed; that the State either created said dangerous condition or had actual or constructive notice thereof and failed to alleviate said condition within a reasonable time; that said dangerous condition was a proximate cause of the accident; and that claimant sustained damages (see Gordon v American Museum of Natural History, 67 NY2d 836 [1986]; Mercer v City of New York, 223 AD2d 688 [1996], affd 88 NY2d 955 [1996]). In order to constitute constructive notice, a defect must be visible and apparent, and must exist for a sufficient length of time prior to the accident to permit the defendant to discover and remedy it (Gordon v American Museum of Natural History, supra at 837).

Although the evidence supports a finding that the Support Apparatus was corroded, there are questions of fact concerning both the extent of the corrosion and whether it constituted a dangerous condition. Further, claimant has admitted that he was aware of the corrosion on the Support Apparatus, and that by using the punching bag with said knowledge, he exercised poor judgment. In light of this admission, the Court cannot find as a matter of law that claimant is not guilty of comparative negligence (see Thoma v Ronai, 189 AD2d 635, 636 [1993], affd 82 NY2d 736 [1993]; see also Romano v 202 Corp., 305 AD2d 576 [2003]). Claimants have therefore not met their burden of establishing entitlement to judgment on the issue of liability as a matter of law (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). Consequently, claimants’ motion for summary judgment on the issue of liability is denied, regardless of the sufficiency of defendant’s responding papers (Winegrad v New York Univ. Med. Ctr., supra).

Claimants’ Motion No. M-76340 is denied in its entirety.


July 8, 2009
Binghamton, New York

HON. CATHERINE C. SCHAEWE
Judge of the Court of Claims


The following papers were read on claimants’ motion:

1) Notice of Motion filed on March 4, 2009; Affirmation of Michael B. Ronemus, Esq., dated March 2, 2009; Affidavit of Richard F. Lynch, Ph.D., sworn to on March 2, 2009, and attached Exhibits A through Q.

2) Affirmation in Opposition of Joseph F. Romani, Assistant Attorney General, dated March 18, 2009, and attached Exhibits A and B.

Filed papers: “Notice of Claim” filed on December 3, 2007; “Amended Notice of Claim” filed on December 12, 2007; Verified Answer filed on January 7, 2008.


[1]. Claimant Christine Prosano’s claim is derivative in nature and, unless otherwise indicated or required by context, the term “claimant” shall refer to Paul Prosano.
[2]. On December 3, 2007, claimants filed a document entitled “Notice of Claim,” and on December 12, 2007, filed an “Amended Notice of Claim.” Notwithstanding the misnomer, the Court will refer to the “Amended Notice of Claim” as the amended claim.
[3]. Claimants indicate that counsel for defendant confirmed the loss of the photographs in a letter dated December 1, 2008. The Court has not been provided with a copy of that letter.
[4]. However, photocopies of photographs that appear to depict claimant’s injuries as well as the broken Support Apparatus and punching bag are attached to defendant’s opposition papers as Exhibit B.
[5]. Claimants’ Motion for Summary Judgment, Exhibit G at 31.
[6]. A “code blue” is apparently a request for additional personnel – at least a nurse and another correction officer – to respond to the scene with emergency medical equipment.
[7]. Claimants’ Motion for Summary Judgment, Exhibit K at 19.
[8]. Id. at 23.
[9]. Affidavit of Richard F. Lynch, Ph.D., sworn to on March 2, 2009, in support of Claimants’ Motion for Summary Judgment, ¶¶ 5, 7.
1[0]. Remarkably, claimants’ expert was able to render this opinion notwithstanding his assertion that he could not conduct a full investigation into the condition of the Support Apparatus prior to the incident without physically examining it.