State's Motion: (1) to dismiss based upon lack of jurisdiction; and (2) for summary judgment denied.
|Claimant(s):||In the Matter of the Claim of KERRY N. EDGERTON|
|Claimant short name:||EDGERTON|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :||Caption amended to reflect the State of New York as the proper defendant.|
|Judge:||CHRISTOPHER J. McCARTHY|
|Claimant's attorney:||ISAACSON, SCHIOWITZ & KORSON, LLP
By: Jeremy Schiowitz, Esq.
|Defendant's attorney:||ERIC T. SCHNEIDERMAN
Attorney General of the State of New York
By: G. Lawrence Dillon, Esq., AAG
|Third-party defendant's attorney:|
|Signature date:||September 25, 2017|
|See also (multicaptioned case)|
For the reasons set forth below, the State's Motion: (1) to dismiss the Claim pursuant to CPLR 3211, and Court of Claims Act §§ 10(3) and 11(a), on the basis that the Court lacks jurisdiction, is denied; and (2) for summary judgment, pursuant to CPLR 3212, dismissing the Claim is also denied.
Claimant, proceeding pro se at that time, properly served a Notice of Intention to File a Claim upon Defendant on December 14, 2015. The Notice of Intention asserts that, on Sunday afternoon, November 1, 2015, at about 1:15 p.m., Mr. Edgerton sustained injuries in the weight shack area, located in the yard, at Marcy Correctional Facility (hereinafter, "Marcy"), which resulted in him being transported to the emergency room at St. Elizabeth's Rome Memorial Hospital in Utica, New York. Immediately after the medical procedures were conducted, however, "(Incomplete)," he was returned to Marcy. "The primary cause of the accident derives from a host of discrepancies [sic] in stark contrast to DOCCS lawful comportment under the care, custody and control doctrine(s)" (Ex. A attached to Affirmation of Assistant Attorney General G. Lawrence Dillon, Esq. [hereinafter, "Dillon Affirmation"]).
The Claim was filed with the Office of the Clerk of the Court on February 11, 2016 by Claimant's counsel.(2) The Claim was served upon Defendant by certified mail, return receipt requested on January 22, 2016 (Dillon Affirmation, ¶ 9). The Claim asserts that, at about 1:15 p.m. on November 1, 2015, Claimant was in the weight shack area located in the yard at Marcy, when he was caused to trip and fall over an uneven, unsecured, rubber mat. It is asserted that the defect in the weight shack caused Claimant to be injured by reason of the negligence, recklessness, and carelessness of Defendant in failing to properly maintain the weight shack, in allowing the floor of the weight shack and mat to become uneven, raised, depressed, deteriorated, and/or in a state of disrepair and/or improper repair, in failing to inspect the weight shack, and in permitting and allowing a trap, hazard and nuisance to exist for an excessive and unreasonable period of time (Claim, ¶ 3).
Pursuant to the Court of Claims Act provisions applicable to personal injury actions, Claimant was required to file and serve his Claim within 90 days from the date of accrual unless a written Notice of Intention to File a Claim was served upon the Attorney General within such time period. In that case, the Claim itself was required to be filed and served upon the Attorney General within two years after the accrual of the Claim (Court of Claims Act §§ 10). In either case, Claimant was required to initiate action within 90 days of the Claim's accrual. If the Notice of Intention is defective, it does not extend Claimant's time to serve and file the Claim and, thus, the Claim filed with the Clerk of the Court on February 11, 2016 would be untimely.
Court of Claims Act § 11(b) requires that, "[t]he claim shall state the time when and place where such claim arose, the nature of same, and the items of damage or injuries claimed to have been sustained and … the total sum claimed" (see Demonstoy v State of New York, 130 AD3d 1337 [3d Dept 2015]). The statute further states that a Notice of Intention to file a claim "shall set forth the same matters except that the items of damage or injuries and the sum claimed need not be stated."
Defendant asserts that the Notice of Intention fails to meet the specificity requirements of Court of Claims Act § 11(b) because "[t]here is no cognizable cause of action alleged in the Notice of Intention" and also that "there is no geographic description of where the alleged action took place other than 'weight shack area located in the yard' " (Dillon Affirmation, ¶ 8).
Pursuant to Court of Claims Act § 11(c), however, any such defect is waived unless it is raised with particularity as an affirmative defense either by motion to dismiss prior to service of the responsive pleading, or in the responsive pleading itself (see Knight v State of New York, 177 Misc 2d 181, 183 [Ct Cl 1998]).
Defendant, in its Answer served and filed on February 19, 2016, asserts, among its affirmative defenses, that the Court lacks jurisdiction because the Claim fails to include an adequate description of the location of the incident (fifth affirmative defense), or the condition that caused the incident (sixth affirmative defense), and fails to include an adequate particularization of the nature of the cause of action (seventh affirmative defense). The Court notes that the affirmative defenses attack the sufficiency of the Claim only. Defendant did not posit similar affirmative defenses that the Notice of Intention to File a Claim, likewise, failed to comply with Court of Claims Act § 11 with regard to its adequacy, sufficiency, or specificity.
Thus, the question posed is whether Defendant raised those affirmative defenses with sufficient particularity to preserve them pursuant to Court of Claims Act § 11(c).
Judge Leonard Silverman of this Court set forth a concise summary of what "particularity" must mean in this situation in Fowles v State of New York (152 Misc 2d 837, 840 [Ct Cl 1991]):
For a statement to be sufficiently particular it must give notice of the transaction or occurrence intended to be proven and the material elements of it (CPLR 3013; Meese v Miller, 79 AD2d 237). The primary purpose of a pleading is to advise the adverse party of a claim or defense (Lane v Mercury Record Corp., 21 AD2d 602, affd 18 NY2d 889). The pleading must provide notice and not be just a label (Huntington Utils. Fuel Corp. v McLoughlin, 45 Misc 2d 79). A pleading must allege facts (Melito v Interboro-Mutual Indem. Ins. Co., 73 AD2d 819). The mere allegation of a legal conclusion in an affirmative defense is insufficient (Griffo v Tauriello, 23 Misc 2d 430).
Judge Silverman continued: "[a] claimant should not be left in a quandary to determine what an affirmative defense is referring to" (id.). In the Court's view, Defendant has failed to allege sufficient facts in its Motion to support either the sixth or seventh affirmative defenses. The Motion asserts that a deficient or an insufficient Notice of Intention was served and did not extend the time to serve and file the Claim (see Dillon Affirmation, ¶¶ 14-20). By contrast, the affirmative defenses assert perceived deficiencies in the Claim. Accordingly, the affirmative defenses raised in the State's Answer do not give Claimant notice of the transaction or occurrence intended to be proved, i.e., that the Notice of Intention, and not the Claim itself, failed to meet the particularity requirements of Court of Claims Act § 11 (b). The Court finds and concludes that the affirmative defenses were not raised with the particularity required by Court of Claims Act § 11(c), and did not preserve the defense of lack of subject matter and personal jurisdiction because the Notice of Intention was ineffective owing to the lack of particularity. Thus, the defense has been waived (see Hankins v State of New York, UID No. 2008-040-010 [Ct Cl, McCarthy, J., Feb. 25, 2008]). Accordingly, the State's Motion to dismiss is denied.
The Court now turns to the portion of Defendant's Motion that seeks summary judgment dismissing the Claim pursuant to CPLR 3212. Summary judgment is a drastic remedy to be granted sparingly and only where no material issue of fact is demonstrated in the papers related to the motion (see Crowley's Milk Co. v Klein, 24 AD2d 920 [3d Dept 1965]; Wanger v Zeh, 45 Misc 2d 93 [Sup Ct, Albany County 1965], affd 26 AD2d 729 [3d Dept 1966]). "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 ; see Alvarez v Prospect Hosp., 68 NY2d 320, 324 ; Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 ). "Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers" (Alvarez v Prospect Hosp., supra at 324; see Winegrad v New York Univ. Med. Center, supra at 853).
"[W]hen the State acts in a proprietary capacity as a landlord, it is subject to the same principles of tort law as is a private landlord" (Miller v State of New York, 62 NY2d 506, 511 ). Accordingly, while the State is not an insurer of those who enter upon its premises, and negligence cannot be inferred solely from the occurrence of an accident (see McMullen v State of New York, 199 AD2d 603, 604 [3d Dept 1993]; Tripoli v State of New York, 72 AD2d 823, 823 [3d Dept 1979]), it does have a common-law duty to maintain its facilities "in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk," with foreseeability constituting the measure of liability (Basso v Miller, 40 NY2d 233, 241 , quoting Smith v Arbaugh's Rest., 469 F2d 97, 100 [DC Cir. 1973], cert denied 412 US 939 ; see Galindo v Town of Clarkstown, 2 NY3d 633, 636 ).
In order to prevail on a motion for summary judgment, Defendant must show, prima facie, that it maintained its premises in a reasonably safe condition and that it did not create, or have actual or constructive notice, of the allegedly dangerous condition (Black v Kohl's Dept. Stores, Inc., 80 AD3d 958, 959 [3d Dept 2011]; Cietek v Bountiful Bread of Stuyvesant Plaza, Inc., 74 AD3d 1628, 1629 [3d Dept 2010]). "To constitute constructive notice, a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit [D]efendant's employees to discover and remedy it" (Gordon v American Museum of Natural History, 67 NY2d 836, 837 ; Anderson v Skidmore Coll., 94 AD3d 1203, 1204 [3d Dept 2012]).
Whether a dangerous condition exists, so as to create liability depends upon the facts and circumstances of each case and is generally a question for the fact finder (Trincere v County of Suffolk, 90 NY2d 976, 977 ; Moons v Wade Lupe Const. Co., Inc., 24 AD3d 1005, 1006 [3d Dept 2005]).
In support if its Motion, the State has submitted, inter alia, Assistant Attorney General Dillon's Affirmation. Counsel states that Claimant testified at his deposition conducted on August 18, 2016 that, during the 12 months prior to the accident, he had used the weight shack on average three times per week, or 12 times per month (Dillon Affirmation, ¶ 21 & Ex. E [pp. 16-17] attached). Claimant also testified that he had used the weight shack during the preceding year without ever tripping and falling. He did not see any other inmate trip and fall in the weight shack during that year prior to the accident (id., ¶ 22 & Ex. E [pp. 46-47] attached). Claimant further testified that he had never filed a grievance, or otherwise alerted anyone, about concerns of a safety hazard/tripping in the weight shack (id., ¶ 23 & Ex. E [pp. 47, 54] attached). Daniel Deyo, a Recreation Program Leader II, and the civilian in charge of the weight area, also was deposed (id., ¶ 25 & Ex. G attached). He stated that, prior to Claimant's incident, he did not receive any complaints concerning inmates tripping on the edges of the mats in the weight shack (id. & Ex. G [pp. 17-18 & 36-37] attached)(3) .
Following the accident, the facility investigated the incident, which resulted in the creation of an Unusual Incident Report (Dillon Affirmation, ¶ 26 & Ex. F [unnumbered pp. 2-5] attached). The Report recites that Claimant "reported to staff that he tripped over a weight bar and injured his left lower leg" (id., Ex. F [unnumbered p. 2]). Also included in Exhibit F is a memorandum by Sgt. T. McNaney relating that "[w]hile he was being treated[,] I interviewed Inmate Edgerton[,] who stated that he was stepping over a weight bar when he hooked his toe under a weight plate and tripped over a weight bar[,] twisting his left leg and falling on his right shoulder" (id., Ex. F [unnumbered p. 7]). After the accident, Claimant was taken to the prison infirmary where he was examined by Nurse Wilcox. She generated an "Inmate Injury Report" (Ex. 1 included in Ex. E [Claimant's Deposition Transcript] attached to the Dillon Affirmation). That document contains Claimant's inmate statement that reads, "Tripped and fell over wgts in the yard twisting and falling on my leg." The report indicates that Claimant could not sign because he was "cuffed-unable." The reporting officer is Sgt. Thomas McNaney (Dillon Affirmation, ¶ 27).
During his deposition, Claimant reviewed the Report. Mr. Edgerton testified that he was examined by the nurse and that they had a conversation about the incident. He agreed that the statement attributed to him in the Inmate Injury Report is correct, however, he also said that the statement is incomplete. He testified that he further stated that a piece of black rubber matting caused him to fall (Dillon Affirmation, ¶ 28, referring to Ex. E [pp. 30-31]).(4)
Defendant asserts that the Claim should be dismissed as Claimant will be unable to demonstrate that there was any dangerous condition that the State had actual or constructive notice of the condition, or that Defendant failed to act reasonably to remedy it (see Gordon v American Museum of Natural History, supra). Defendant asserts it is undisputed that there was no prior accident history of tripping on the mats in the weight shack which might have placed Defendant on notice of a possible hazard. Furthermore, the State posits that there was no constructive notice. Defendant further asserts that the mats were readily observable by the reasonable use of one's senses, so there was no duty to warn (Dillon Affirmation, ¶¶ 29-31).
In opposition to the Motion, Claimant's counsel refers to Claimant's deposition testimony that the Inmate Injury Report does not include Claimant's statement that a piece of black rubber matting had caused him to trip and fall. Although he landed on the weights, the reason he tripped was due to the raised mat (Affirmation of Jeremy Schiowitz, Esq. [hereinafter, "Schiowitz Affirmation"], ¶ 21 & Ex. A [p. 31] attached).
At his deposition, Claimant was asked to review the photographs of the weight shack. He testified that the photos were of the weight shack, however, he stated it was cleaned up prior to the photographs being taken as "it's never like this" (Schiowitz Affirmation, Ex. A [p. 35]). When he was shown the photographs marked as Exhibits 6 and 7 (included in Ex. E attached to the Dillon Affirmation), which depict a mat overlapping onto another mat, and asked whether it appeared like this on the date of the accident, he answered that it looked similar, but that the mat he tripped over was raised a little higher than the one depicted in the photographs (id., ¶ 22, Ex. A [p. 38]). Claimant testified that his right foot got caught on the edge of this overlapping mat, which caused him to fall forward and hit his left leg against a barbell on the floor that resulted in his injury (id., ¶ 23 & Ex. A [pp. 38-39]).
Claimant also refers to the deposition testimony of Mr. Deyo, the employee in charge of the weight shack. He testified that the mats are not a uniform size, so they are placed together as closely as possible, which sometimes results in overlapping. Despite this, he never had any discussions with anyone concerning replacing mats which were not the proper size and were, therefore, overlapping onto adjacent mats (Schiowitz Affirmation, ¶ 25, Ex. B [pp. 18-19] attached).
Mr. Deyo was shown the photograph marked as Exhibit 7 (included in Ex. E attached to the Dillon Affirmation), which depicts the edge of one mat on top of an adjacent mat, and was asked whether that constituted a tripping hazard. Mr. Deyo answered "I suppose so" (Schiowitz Affirmation, ¶ 26 & Ex. B [p. 25] attached). He was also shown the photograph marked as Exhibit 6 and agreed that the mat which was sticking up, even when it was not overlapping, constituted a tripping hazard "[a]s much as a stone would" (id., ¶ 27 & Ex. B [p. 25-26] attached).
The witness also agreed that the fact some of the mats may have been overlapping or had their corners or edges raised would be a typical condition inside the weight shack (id., ¶ 28 & Ex. E [p. 26] attached).
Correction Officer Keith Burch also was deposed. He is a Correction Officer at Marcy and was on duty at his post near the weight shack on the date Claimant was injured. He testified that, from time to time prior to date of the accident, he had seen mats inside the weight shack whose edges were overlapping onto mats next to them, like those depicted in the photograph that was marked as Exhibit 5 included in Defendant's Exhibit E (Schiowitz Affirmation, ¶ 30 & Ex. C [p. 11] attached).
Attached to the Schiowitz Affirmation as Exhibit D is a copy of the Affidavit of Luis Davila (hereinafter, "Davila Affidavit') in which he stated that he began serving a six-month sentence at Marcy in June or July, 2015, and, from that time, exercised in the weight shack almost daily where he noticed that several mats overlapped one another and even stuck up a little, causing a trip hazard (Davila Affidavit, ¶ 2). He also asserted that the weight shack in general was not maintained properly (id.). He further stated that, on the date of the accident, he was in the weight shack, and that he witnessed Claimant Kerry Edgerton "trip and fall in the weight area due to one of the aforementioned mats overlapping onto another mat and sticking up another inch or so. The mat itself was about an inch thick and it was sticking up another inch. It was therefore about two inches above the mat beneath it. I saw [Claimant's] foot trip on this mat causing him to fall hard on to some exercise equipment" (Davila Affidavit, ¶ 3). Mr. Davila helped Claimant up and eventually escorted him over to the correction officers. He and Claimant then boarded a facility van and headed to the infirmary (id., ¶ 4). Mr. Davila further stated that "[t]he mat that caused [Claimant] to trip was overlapping another mat and sticking up so that it was about two inches higher than that mat below it and was in that condition for at least several months prior to this accident. I know it was in that condition for several months because I exercised in that area regularly for several months prior to the accident" (id., ¶ 5).
Thus, the Court concludes that a question of fact exists as to what caused Claimant to fall and whether Defendant created the condition, or had actual or constructive notice of the condition prior to the accident.
The Court finds and concludes, based upon the submissions of the parties, that questions of fact exist which preclude granting Defendant summary judgment dismissing the Claim. The Court concludes that Defendant has failed to make a showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case. Thus, Defendant's Motion for summary judgment is denied.
September 25, 2017
Albany, New York
CHRISTOPHER J. McCARTHY
Judge of the Court of Claims
The following papers were read and considered by the Court on Defendant's Motion to dismiss the Claim pursuant to CPLR 3211, and Court of Claims Act §§ 10(3) and 11(a) and for summary judgment, pursuant to CPLR 3212, dismissing the Claim:
Notice of Motion, Affirmation in Support,
Exhibits attached & Memorandum of Law 1
Affirmation in Opposition,
& Exhibits attached 2
Filed Papers: Claim, Answer
2. The Claim originally was received by the Court on January 21, 2016 and was returned to Claimant on February 2, 2016 as the filing fee was not included. Claimant's counsel then returned the Claim with the filing fee and the Claim was filed on February 11, 2016.
3. Ex. G attached to the copy of Mr. Dillon's Affirmation submitted to the Court does not contain a copy of p. 17. However, attached to Claimant's counsel's Affirmation in Opposition as Ex. B is a complete copy of Mr. Deyo's deposition transcript.
4. Ex. E attached to the copy of Mr. Dillon's Affirmation submitted to the Court does not contain copies of pp. 30-31. However, attached to Claimant's counsel's Affirmation in Opposition as Exhibit A is a complete copy of Claimant's deposition transcript.