New York State Court of Claims

New York State Court of Claims
GREEN v. THE STATE OF NEW YORK, # 2010-009-007, Claim No. 110887, Motion No. M-77492

Synopsis

Defendant's motion for an order granting it permission to amend its Answer to add the Affirmative Defense of collateral estoppel was granted, and upon such amendment, summary judgment was granted dismissing the claim.

Case information

UID: 2010-009-007
Claimant(s): JOHN F. GREEN
Claimant short name: GREEN
Footnote (claimant name) :
Defendant(s): THE STATE OF NEW YORK
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 110887
Motion number(s): M-77492
Cross-motion number(s):
Judge: NICHOLAS V. MIDEY JR.
Claimant's attorney: JOHN F. GREEN, Pro Se
Defendant's attorney: HON. ANDREW M. CUOMO
Attorney General
BY: Edward F. McArdle, Esq.,
Assistant Attorney General
Of Counsel.
Third-party defendant's attorney:
Signature date: March 16, 2010
City: Syracuse
Comments:
Official citation:
Appellate results:
See also (multicaptioned case)

Decision

Defendant has brought this motion for an order granting it permission to amend its Answer to include the affirmative defense of collateral estoppel, and upon such amendment, for a further order of summary judgment dismissing the claim.

The following papers were considered by the Court in connection with this motion:

Notice of Motion, Attorney Affirmation, with Schedules (1-3) and Exhibits (A-E) 1,2

Claimant has not submitted any papers to the Court in response to this motion.

In this claim (Exhibits A-1 and A-2), claimant seeks damages for personal injuries suffered by him in an assault by another inmate which occurred on or about October 8, 2004 at Auburn Correctional Facility, where they were both then incarcerated.

Defendant's request for permission to amend its Answer by adding the defense of collateral estoppel is based upon an action brought by the claimant in Federal District Court, based upon the same facts as the instant claim. In this Federal action (John F. Green v L. Leubner, Sgt., Auburn Correctional Facility, et al., United States District Court, Northern District of New York, Civil Action No. 9:07-CV-01035[LEK/DEP]), Hon. David E. Peebles, U.S. Magistrate Judge, issued a Report and Recommendation, dated September 1, 2009, recommending that defendant's motion for summary judgment be granted and that Mr. Green's complaint be dismissed (Schedule 1). This Report and Recommendation was approved and adopted by the Hon. Lawrence E. Kahn, U.S. District Judge in a Decision and Order dated September 22, 2009 (Schedule 2) and a Judgment was granted dismissing the complaint on September 22, 2009 (Schedule 3). Based upon these recent developments in the Federal Court action, defendant now seeks permission to amend its Answer to assert the defense of collateral estoppel.

Pursuant to CPLR Rule 3025(b), a party may amend pleadings at any time with Court approval, which shall be freely given. It is well settled that in the absence of prejudice or surprise resulting therefrom, leave to amend pleadings should be granted (McCaskey, Davies & Assoc. v New York City Health & Hosps. Corp., 59 NY2d 755).

As noted, claimant has failed to submit any response to this motion, and he therefore has not raised any argument that he would be prejudiced or surprised by this amendment. Furthermore, it certainly appears to this Court that claimant was an active participant in the Federal Court action, and is therefore well aware of the proceedings upon which the defense of collateral estoppel is based. Additionally, and as explained by defendant's attorney in his supporting Affirmation, this affirmative defense of collateral estoppel was not available to the defendant at the time that the original Answer was served in April, 2005, since there had been no determination made in the Federal Court action. In this regard, the Court notes that defendant promptly brought this application to amend its Answer once claimant's Federal Court action had been dismissed.

Based upon all of the foregoing, therefore, the Court finds that defendant should be given permission to amend its Answer in order to assert the affirmative defense of collateral estoppel.

Based upon this affirmative defense of collateral estoppel, defendant also has moved herein for an order granting it summary judgment dismissing the claim. Defendant contends that all of claimant's allegations of fact set forth in the instant claim have been decided against his interest in the above-referenced Federal Court action, and therefore claimant is collaterally estopped from re-litigating those factual allegations herein.

The doctrine of collateral estoppel may be applied even if the tribunals or the causes of action asserted are not identical. Rather, the party seeking the benefit of the doctrine must first prove that the identical issue was necessarily decided in the prior action, and secondly, that the party to be precluded from re-litigating the issue must have had a full and fair opportunity to contest the prior determination (D'Arata v New York Central Mutual Fire Insurance Company, 76 NY2d 659; Ryan v New York Telephone Company, 62 NY2d 494).

In this particular matter, the Court has reviewed the Report and Recommendation of Magistrate Peebles (Schedule 1) and finds that factual determinations were made establishing that none of the defendant's employees were aware of any reasonably foreseeable risk that claimant would be assaulted by another inmate. Magistrate Peeble also found that the assault against claimant occurred "unexpectedly, rapidly, and within such short span of time" that the correction officer on duty had no opportunity to intervene before the attack occurred (Schedule 1, Report and Recommendation of Magistrate Peeble, at p. 21). Magistrate Peeble also found that correction officers responded timely and appropriately upon becoming aware that an assault had occurred.

Defendant has also established to the satisfaction of this Court that claimant had a full and fair opportunity to contest the determinations made in the Federal Court action. Furthermore, claimant testified at an Examination Before Trial conducted during the course of that Federal Court action, and defendant has provided a transcript of that testimony in support of this motion (Exhibit E).

Based on the foregoing, the Court hereby finds that the identical factual issues which form the basis of the claim herein have previously been determined against claimant's interest in the Federal Court action, that claimant had a full and fair opportunity in that action to contest these determinations of fact, and that he is therefore collaterally estopped from re-litigating the same issues herein. Having found that the doctrine of collateral estoppel precludes claimant from re-litigating these issues of fact in the instant claim, claimant will not be able to establish any negligence against the State in this claim, and it must therefore be dismissed.

The Court notes that prior to the institution of this motion, a day certain for the trial of this claim had been scheduled for June 9, 2010. Based upon the determination made herein, this trial is unnecessary and is hereby cancelled. No appearance from either party is expected or required on that day.

Based upon the foregoing, therefore, it is

ORDERED, that Motion No. M-77492 is hereby GRANTED; and it is further

ORDERED, that defendant is hereby granted permission to amend its Answer to assert the affirmative defense of collateral estoppel; and it is further

ORDERED, that Claim No. 110887 is hereby DISMISSED; and it is further

ORDERED, that based upon the dismissal of the claim herein, service and filing of an Amended Answer is hereby dispensed with; and it is further

ORDERED, that the previously scheduled trial of this claim for June 9, 2010 is hereby cancelled.

March 16, 2010

Syracuse, New York

NICHOLAS V. MIDEY JR.

Judge of the Court of Claims