Claimant's motion for partial summary judgment on the issue of liability and defendant's cross motion to amend its answer were both denied. Claimant failed to demonstrate his entitlement to summary judgment as a matter of law and defendant's request to amend its answer to allege a defect in the notice of intention lacked merit in the absence of a defense to the timeliness of the claim.
|Claimant short name:||FREEMAN|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||FRANCIS T. COLLINS|
|Claimant's attorney:||Melvin & Melvin, PLLC
By: Erin M. Tyreman, Esq.
|Defendant's attorney:||Honorable Letitia James, Attorney General
By: Christopher J. Kalil, Esq., Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||March 3, 2021|
|See also (multicaptioned case)|
Claimant moves for partial summary judgment on the issue of liability. Defendant opposes the motion and cross-moves to amend its answer.
Claimant, a former inmate of the Department of Corrections and Community Supervision (DOCCS), was allegedly injured while engaged in a work program at Gouverneur Correctional Facility on July 2, 2015. Two causes of action are alleged in the claim, one for failure to provide a safe place to work, and one for failure to provide adequate medical treatment.
Claimant alleges he and other inmates assigned to the recycling crew were tasked with removing 50-gallon barrels of rock salt from the back of a truck. Claimant alleges that no training, no equipment and no safety gear was provided to the crew moving the barrels (Claim, ¶¶10-13). According to claimant's deposition testimony and affidavit submitted in support of the motion, the grounds crew picked up the barrels from outside various buildings and loaded them onto the truck; the recycling crew, of which he was a member, was then directed to remove the barrels from the back of the truck. Claimant testified that "[n]ormally [the grounds crew] move them around with a front end loader or forklifts" (claimant's Exhibit D, p. 101). He testified that some of the barrels were full of rock salt and others were only partially full so the weight of the barrels varied between approximately 300 and 500 pounds (id. at p. 138; claimant's affidavit, ¶ 22 [the barrel that struck claimant's foot weighed between 300 and 500 pounds]). Claimant testified that he and other recycling crew members complained this was not their usual job and that they were untrained (claimant's Exhibit D, pp. 101-102; claimant's affidavit, ¶ 8). According to the claimant, a correction officer told them "you got to follow our orders" (id. at 102; see also claimant's affidavit, ¶¶ 8-9). Claimant successfully removed the first barrel from the back of the truck. As he was in the process of moving it away from the tailgate, the inmate working on the flatbed portion of the truck "pushed the [second] barrel too far and it fell off of the back of the truck directly onto my left foot" (claimant's affidavit ¶ 22; see also claimant's Exhibit D at pp. 102, 110 ).
Captain Craig Demmon was exiting the mess hall when he observed a commotion outside the recycling building. Upon his arrival at the scene, claimant's boot had already been removed and Captain Demmon (then a Sergeant) directed two inmates to assist him to the infirmary (claimant's Exhibit E, p. 13). Although a medical report indicated that a barrel had been "tossed" off the truck (claimant's Exhibit F), Captain Demmon testified "I witnessed [the accident] happen. It was an accident, so nothing was done intentionally to harm the inmate by any other individual" (claimant's Exhibit E, p. 32).
The Court of appeals restated the familiar procedural principles applicable to motions for summary judgment in Vega v Restani Constr. Corp. (18 NY3d 499, 503 ):
"On a motion for summary judgment, facts must be viewed 'in the light most favorable to the non-moving party' (Ortiz v Varsity Holdings, LLC, 18 NY3d 335, 339 ). Summary judgment is a drastic remedy, to be granted only where the moving party has 'tender[ed] sufficient evidence to demonstrate the absence of any material issues of fact' (Alvarez v Prospect Hosp., 68 NY2d 320, 324 ) and then only if, upon the moving party's meeting of this burden, the non-moving party fails 'to establish the existence of material issues of fact which require a trial of the action' (id.). The moving party's '[f]ailure to make [a] prima facie showing [of entitlement to summary judgment] requires a denial of the motion, regardless of the sufficiency of the opposing papers' (id. [emphasis added])."
A claimant moving for summary judgment on the issue of liability in a negligence action " 'must establish, prima facie, that the defendant breached a duty owed to the [claimant] and that the defendant's negligence was a proximate cause of the alleged injuries' " (Hai Ying Xiao v Martinez, 185 AD3d 1014, 1014 [2d Dept 2020], quoting Tsyganash v Auto Mall Fleet Mgt., Inc., 163 AD3d 1033, 1033-1034 [2d Dept 2018]). The law is settled that the State owes a duty
" 'to provide inmates engaged in work programs with reasonably safe equipment and sufficient warnings and instructions for safe operation of the equipment' " (Rosa v State of New York, 63 AD3d 1383, 1384 [3d Dept 2009], appeal dismissed 13 NY3d 856 , rearg denied 14 NY3d 740 , quoting Manganaro v State of New York, 24 AD3d 1003, 1004 [3d Dept 2005]; see also Bernard v State of New York, 34 AD3d 1065, 1067 [3d Dept 2006]; Muhammad v State of New York, 15 AD3d 807 [3d Dept 2005]; Maldonado v State of New York, 255 AD2d 630, 631 [3d Dept 1998]). While an inmate is required to exercise ordinary care for his or her own safety (Havens v County of Saratoga, 50 AD3d 1223, 1224 [3d Dept 2008], lv dismissed 11 NY3d 846 ), when faced with a decision whether to obey an order and risk injury or be subjected to disciplinary measures, an inmate may not be faulted for his or her decision to obey an order that results in injury (see Bernard v State of New York, at 1068; Lowe v State of New York, 194 AD2d 898 [3d Dept 1993]). The Court of Appeals recently clarified that to be entitled to summary judgment a claimant need only establish a prima face case of defendant's negligence and need not demonstrate the absence of his or her own comparative negligence (see Rodriguez v City of New York, 31 NY3d 312, 324-325 ). As a result, partial summary judgment on the issue of liability is appropriate where a claimant establishes that defendant's breach of a duty was a proximate cause of his or her alleged injuries.
Here, claimant failed to establish his entitlement to partial summary judgment on either his cause of action for negligence in failing to provide a safe place to work or his cause of action for failing to provide adequate medical treatment.
With respect to defendant's alleged failure to provide a safe place to work, claimant failed to eliminate questions of fact as to whether a failure to provide equipment to unload the truck was a proximate cause of his accident. Although claimant testified that he had personally observed the rock-salt barrels being placed in front of buildings with a forklift or front-end loader, claimant was not a member of the grounds crew that normally performed the work and no evidence was submitted, expert or otherwise, as to the proper or customary procedure for removing such barrels from the back of a truck. Absent proof regarding the proper equipment to be utilized for this task, or any evidence indicating claimant's injuries could have been avoided with the use of such equipment, claimant failed to meet his burden of demonstrating his entitlement to partial summary judgment.
Moreover, in opposition to the motion, defendant raised a triable question of fact regarding whether claimant's conduct was the sole proximate cause of the accident. In particular, defendant submitted the affidavit of Frank J. Crosby, a Correction Officer at Gouverneur Correctional Facility who served as supervisor of the inmate recycling crew. In his affidavit, Officer Crosby states that the inmates picked up the barrels of salt from in front of the buildings "fairly easily" and placed them in the back of the flatbed truck "without any incident, complaint or concern raised" (Crosby affidavit, ¶ 3). Officer Crosby indicates further that the inmates then walked behind the truck to the Recycling Building where he:
"advised the inmates, including Mr. Freeman, that because some of the barrels were fairly heavy, and, in my experience, would be more difficult to unload than load, I was going inside my office to call the Maintenance Department so- consistent with standard [Gouverneur Correctional Facility] practice- it could send over a forklift (and operator) to safely unload the barrels off the flatbed" (Crosby affidavit, ¶ 4).
Based on Officer Crosby's affidavit, defendant contends that a triable question of fact exists regarding whether claimant's decision to remove the barrels from the truck without waiting for the arrival of the forklift was the sole proximate cause of the accident. Indeed, if it is determined at trial that Officer Crosby directed the inmates to wait for the forklift before unloading the truck, claimant's allegations of negligence will be refuted and his conduct found to be the sole proximate cause of his injuries (see Cahill v Triborough Bridge & Tunnel Auth., 4 NY3d 35, 39 ; Cruz v Richardson, ___AD3d ___ 2021 NY Slip Op 00990 [1st Dept 2021]). Whether or not the inmates were directed to await the arrival of a forklift before unloading the barrels is, thus, a triable question of fact precluding summary judgment on the issue of liability in claimant's favor.
While claimant contends defendant's failure to disclose Officer Crosby's identity as a fact witness during the course of discovery warrants preclusion, claimant's knowledge of his identity as a fact witness cannot be disputed. In particular, claimant disclosed Officer Crosby as a fact witness in his response to defendant's discovery demands (see defendant's Exhibit A annexed to Reply Affirmation of C.J. Kalil, Esq.) and testified at an examination before trial that Officer Crosby was the recycling crew supervisor who ordered them to do a job for which they were not equipped (claimant's Exhibit D, pp. 136-138). There being no prejudice associated with defendant's failure to disclose Officer Crosby as a fact witness (Monzac v 1141 Elder Towers LLC (180 AD3d 547, 548 [1st Dept 2020]; Kropp v Town of Shandaken, 91 AD3d 1087, 1091-1092 [3d Dept 2012]), his affidavit is appropriately considered in opposition to the instant motion.
Claimant also failed to demonstrate his entitlement to summary judgment on his cause of action for inadequate medical treatment. "[W]here medical issues are not within the ordinary experience and knowledge of lay persons, expert medical opinion is required to establish that defendant's alleged negligence or deviation from an accepted standard of care caused or contributed to [the] claimant's injuries" (DeMaille v State of New York, 166 AD3d 1405, 1406-1407 [3d Dept 2018], quoting Wood v State of New York, 45 AD3d 1198, 1198, 846 NYS2d 717  [internal quotation marks omitted]). Inasmuch as no medical opinion evidence was submitted in support of claimant's motion, the Court cannot conclude as a matter of law that defendant deviated from an accepted standard of care or that any delay in the provision of treatment contributed to claimant's injuries.
Turning to defendant's request to amend its answer, defendant seeks permission to add as an affirmative defense the following:
"The claim fails to comply with section 11 of the Court of Claims Act as the claim alleges causes of actions not set forth in the notice of intention. Thus, those causes of actions not set forth in the notice of intention are not within the jurisdiction of the Court" (Affirmation of C.J. Kalil, Esq., dated Jan. 8, 2021, ¶ 5; Exhibit A, proposed Answer, ¶ 29).
The law is settled that absent prejudice or surprise, leave to amend a pleading shall be freely granted where the proposed amendment is not plainly lacking in merit (CPLR 3025 [b]; McCaskey, Davies and Assoc. v New York City Health and Hosps. Corp., 59 NY2d 755, 757 ; Shelton v New York State Liq. Auth., 61 AD3d 1145, 1149 [3d Dept 2009]). Although neither prejudice nor surprise has been shown here, a brief examination of the merits of the proposed defense is warranted
The purpose of a notice of intention is to apprise the State that a claim may be interposed in the future and to extend a claimant's time to serve and file a claim (Matter of Devine v State of New York, 147 Misc 2d 524, 525 [Ct Cl, 1990]; Court of Claims Act § 10 ). It is not a necessary prerequisite to the service and filing of a claim and it is not the procedural vehicle by which the Court obtains personal jurisdiction over the defendant or subject matter jurisdiction over a claim (see generally Court of Claims Act §§ 10, 11; cf. General Municipal Law § 50-e). Considered in this light, defendant's request to amend its answer to allege a jurisdictional defect with respect to causes of action set forth in the claim but not in the notice of intention is plainly lacking in merit. Defendant waived any defense it may have had with respect to the timeliness of the claim by failing to raise such an objection in either a pre-answer dismissal motion or as an affirmative defense in its answer (Court of Claims Act § 11 [c]). This being the case, the content of the notice of intention is no longer an issue and defendant's request to amend its answer in this regard must be denied.Based on the foregoing, claimant's motion for partial summary judgment on the issue of liability and defendant's cross motion to amend its answer are both denied.
March 3, 2021
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims