Motion for partial summary judgment on claim for negligent infliction of emotional distress was denied.
|Claimant(s):||JOHN D. JUSTICE|
|Claimant short name:||JUSTICE|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||FRANCIS T. COLLINS|
|Claimant's attorney:||John D. Justice, Pro Se|
|Defendant's attorney:||Honorable Andrew M. Cuomo, Attorney General
By: Paul F. Cagino, Esquire
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||February 5, 2010|
|See also (multicaptioned case)|
By prior Decision and Order of this Court filed December 3, 2008, defendant's cross-motion to dismiss the claim for failure to state a cause of action was granted and the claimant's motion for summary judgment denied as moot (Justice v State of New York, Ct Cl, November 18, 2008 [Claim No. 115070, Motion No. M-75107; CM-75270, UID # 2008-015-084] Collins, J., unreported). That Order was reversed by Order of the Appellate Division, Third Department, upon a finding that "[w]hen his pleading is liberally construed to determine 'whether the facts as alleged fit within any cognizable legal theory' Leon v Martinez, 84 NY2d 83, 87-88 ), it can be read as stating a cause of action for negligent infliction of emotional distress (see generally Johnson v State of New York, 37 NY2d 378 ; Battalla v State of New York, 10 NY2d 237 ; compare Moore v Melesky, 14 AD3d 757, 761 )" (Justice v State of New York, 66 AD3d 1182 ). The matter was therefore remitted to this Court for consideration of the claimant's motion for summary judgment.
As noted by the Appellate Division, claimant was acquitted by reason of mental disease or defect in the killing of two persons (People v Justice, 173 AD2d 144 ) and convicted of manslaughter for the killing of two others (People v Justice, 202 AD2d 981 , lv denied 83 NY2d 968 ). Claimant was made subject to an order of conditions by Order of the Hon. Ronald H. Tills on January 3, 2006 (see CPL 330.20 ). After pursuing various subsequent proceedings in the Supreme Court with respect to the order of conditions, claimant filed the instant claim alleging, inter alia, that he suffers "worry, fear and doubt [that] have wreaked havoc on [his] physical health" as the result of the negligence of the Commissioner of Mental Health in failing to determine whether or not he is in compliance with the written service plan (claim, p. 4).
It is well established that "'summary judgment is a drastic remedy and should not be granted where there is any doubt as to the existence of a triable issue'" (Rotuba Extruders, Inc. v Ceppos, 46 NY2d 223, 231 [citation omitted]). "The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case" (Winegrad v New York Univ. Med. Center, 64 NY2d 851, 853 ). Once the movant has made this showing, the burden shifts to the party opposing 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 v Prospect Hospital, 68 NY2d 320, 324  citing Zuckerman v City of New York, 49 NY2d 557, 562 ).
The law is settled that a person "to whom a duty of care is owed . . . may recover for harm
sustained solely as a result of an initial, negligently-caused psychological trauma, but with ensuing psychic harm with residual physical manifestations" (Johnson v State of New York, 37 NY2d 378 ; see also Ornstein v New York City Health & Hosps. Corp., 10 NY3d 1 ; Battalla v State of New York, 10 NY2d 237 ; cf. Massaro v O'Shea Funeral Home, 292 AD2d 349 ). Here, claimant failed to meet his burden of establishing that the defendant breached a duty of care to him or that any such breach resulted in psychic harm with residual physical manifestations. Although residual physical effects are not in all circumstances a necessary prerequisite to liability, the "genuineness" of the claim herein is not a determination that can be made as a matter of law. Accordingly, claimant's motion for summary judgment is denied.
February 5, 2010
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims
The Court considered the following papers: