New York State Court of Claims

New York State Court of Claims
REZEY v. THE STATE OF NEW YORK, # 2010-032-012, Claim No. 110817, Motion No. M-77283


Case information

UID: 2010-032-012
Claimant(s): PETER REZEY
Claimant short name: REZEY
Footnote (claimant name) :
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 110817
Motion number(s): M-77283
Cross-motion number(s):
Claimant's attorney: Kathryn S. Dell, Esq.
Defendant's attorney: Hon. Andrew M. Cuomo, NYS Attorney General
By: Belinda A. Wagner, Assistant Attorney General, Of Counsel
Third-party defendant's attorney:
Signature date: March 29, 2010
City: Albany
Official citation:
Appellate results:
See also (multicaptioned case)


Claimant moves this Court for an order granting summary judgment on the issue of liability. Defendant opposes the motion on the basis that claimant has failed to show that he is entitled to judgment as a matter of law. The Court agrees and denies claimant's motion for summary judgment.

The underlying claim alleges that defendant was negligent by failing to protect claimant from the reasonably foreseeable accident of a bucket truck tipping and claimant falling approximately 35 feet to the ground on April 29, 2003 at 10:00 A.M. at the Hudson Correctional Facility in Hudson, New York. The claim also alleges that defendant maintained the bucket truck in an unsafe condition and that, as a result of defendant's negligence, claimant was seriously injured.

In support of his motion for summary judgment, claimant argues that because he was in the custody and control of the State of New York Department of Correctional Services at the time of his injury, the State of New York must be held liable for his injuries. Claimant relies on Labor Law 240 (1) to support his position that defendant had a duty to protect claimant. He also relies on the Occupational Safety and Health Administration's standards to support his position that defendant was negligent. Specifically, he alleges that defendant's facility electrician, Charles Cozzolino, was not properly trained and, further, that he failed to review operating instructions, inspect the truck for safety defects, check the controls, put padding under the stabilizers, and provide protective gear to claimant.

In opposition to claimant's motion for summary judgment, defendant argues that claimant's reliance on the Labor Law and OSHA is misplaced because such regulations are not applicable to the circumstances of the present case. Defendant further argues that claimant's motion must fail because it is based upon conjecture and speculation, and is not supported by an expert affidavit explaining how the accident occurred or how the defendant is negligent. Finally, defendant argues that multiple doubts exist regarding factual issues and that claimant has, therefore, failed to make a prima facie showing that he is entitled to judgment as a matter of law. The Court agrees.


Summary judgment is a drastic remedy which should not be granted unless it is clear that there are no triable issues of fact (Andre v Pomeroy, 35 NY2d 361, 364 [1974]). The Court's function in a motion for summary judgment is not to resolve issues of fact, but to determine whether issues of fact exist (Barr v County of Albany, 50 NY2d 247 [1980]). The proponent of a motion for summary judgment must make a prima facie entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact (Alvarez v Prospect Hosp., 68 NY2d 320 [1986]). Once the proponent of a motion for summary judgment has set forth such a prima facie entitlement to judgment as a matter of law, the burden shifts to the opponent of 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 Hosp., 68 NY2d 320, supra; Winegrad New York Univ. Med. Ctr., 64 NY2d 851 [1985]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). In determining a motion for summary judgment, the Court must examine the proof in a light most favorable to the party opposing the motion, here, the defendant (Robinson v Strong Memorial Hospital, 98 AD2d 976 [4th Dept 1983]). A motion for summary judgment shall be supported by affidavit, by a copy of the pleadings and by other available proof, such as depositions and written admissions (CPLR 3212[b]).

It is well settled that an inmate is not an employee of the State of New York and therefore not entitled to the full protection afforded other workers by the Labor Law (see D'Argenio v Village of Homer, 202 AD2d 883 [3d Dept 1994]). However, when the State, through its correctional authorities, directs an inmate to participate in a work program during incarceration, the State owes the inmate a duty to provide a reasonably safe workplace and reasonably safe equipment with which to work (Martinez v State of New York, 225 AD2d 877 [3d Dept 1996]; Kandrach v State of New York, 188 AD2d 910 [3d Dept 1992]). Notwithstanding said duty, where an inmate fails to use ordinary care and pursues a dangerous course of conduct, that inmate is required to take some responsibility for his own negligence (Martinez v State of New York, 225 AD2d 877, supra; Carter v State of New York, 194 AD2d 967 [3d Dept 1993]). The State is not an insurer against any injuries which an inmate might sustain, and the mere happening of an accident does not require a finding of liability (Condon v State of New York, 193 AD2d 874 [3d Dept 1993]; Killeen v State of New York, 66 NY2d 850 [1985]).


Claimant has failed to annex a copy of the pleadings to his motion for summary judgment. In addition, the copy of claimant's deposition transcript which is annexed to his motion is neither signed nor notarized. Only a portion of Mr. Cozzolino's deposition transcript has been annexed, making it difficult for the Court to understand the full context of his testimony, and none of the pages which are annexed are signed or notarized. Accordingly, the Court finds that claimant has failed to set forth a prima facie showing of entitlement to judgment as a matter of law (Welton v Drobnicki, 298 AD2d 757 [3d Dept 2002]). The Court notes that defendant, in opposition to claimant's motion, annexed a copy of the pleadings as well as additional pages of Mr. Cozzolino's deposition transcript, including the signature and notary pages. However, when movant has not made a prima facie showing utilizing the required evidence establishing entitlement to judgment as a matter of law, denial of a motion for summary judgment is required ". . . 'regardless of the sufficiency of the opposing papers' . . . " (Ayotte v Gervasio, 81 NY2d 1062, 1063 [1993], quoting Alvarez v Prospect Hosp., 68 NY2d 320, 324, supra).

Notwithstanding the defective nature of claimant's motion, the Court finds that claimant's motion must be denied. Because the mechanics of the accident are beyond the knowledge of a layperson, an expert affidavit should have been submitted to explain how the accident happened and if it was due to the negligence of defendant. The only information the Court has to go on is that of speculation, which is patently insufficient.

Additionally, based upon the evidence which has been presented, there exists multiple questions of fact. For example, claimant states that the stabilizers/outriggers were required to be placed on a solid surface and that they were, instead, placed on grass which had been damp due to recent rains. However, Mr. Cozzolino testified at his deposition that "the ground wasn't wet. It was hard as a rock" (Defendant's Exhibit E at page 9). Claimant states that defendant failed to test the lift controls on the truck, but when asked at his deposition as to whether he saw the back tires lift off the ground when the stabilizer bars were extended, he testified "I don't have the slightest idea. I was out in front of the truck just standing there waiting for him to finish so I could do whatever he wanted me to do" (Claimant's Exhibit I at page 14). Claimant alleges that Mr. Cozzolino was not properly trained; however, Mr. Cozzolino testified that he had taken a class regarding the operation of the vehicle and had been in the bucket approximately 50 times prior to the subject incident (Claimant's Exhibit J at page 11). No proof from an expert has been offered to say whether such training and experience qualifies Mr. Cozzolino as being trained. Claimant alleges that defendant failed to provide protective gear to claimant; however, claimant's own witness admits that claimant had been provided with a safety belt (Claimant's Exhibit H, paragraph 11), and no proof was offered to show that anything more was required. Such conflicting positions raise triable issues of fact regarding how the accident occurred and whether the defendant was in fact negligent, issues of fact which are best determined at a trial of this matter, where the Court can observe the witnesses' demeanor and assess credibility.

Based upon the foregoing, claimant's motion for summary judgment (M-77283) is denied.

March 29, 2010

Albany, New York


Judge of the Court of Claims

Papers Considered:

1. Notice of Motion, dated October 10, 2009; Affidavit of Peter Rezey, sworn to October 9, 2009; Affirmation of Kathryn S. Dell, Esq., dated October 9, 2009 with Exhibits;

2. Affirmation in Opposition of Belinda A. Wagner, AAG, dated December 30, 2009, with Exhibits.

Papers Filed: Claim, filed April 28, 2005; Order, filed May 13, 2005; Verified Answer, June 8, 2005.