Opinion
# 2017-038-518 Claim No. 128359 Motion No. M-89412 Motion No. M-89535
03-01-2017
MARCOS CUEVAS v. NEW YORK STATE
MARCOS CUEVAS, Pro se ERIC T. SCHNEIDERMAN, Attorney General of the State of New York By: Christina Calabrese, Assistant Attorney General
Synopsis
Defendant's motion to strike Note of Issued granted. Claimant utilized an inapplicable Note of Issue form, and as completed, it failed to comply with the Court of Claims rules in a material respect. Claimant's motion for summary judgment denied for failure to establish prima facie that defendant knew or should reasonably have known that claimant was at risk of being attacked by his cellmate.
Case information
| UID: | 2017-038-518 |
| Claimant(s): | MARCOS CUEVAS |
| Claimant short name: | CUEVAS |
| Footnote (claimant name) : | |
| Defendant(s): | NEW YORK STATE |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 128359 |
| Motion number(s): | M-89412, M-89535 |
| Cross-motion number(s): | |
| Judge: | W. BROOKS DeBOW |
| Claimant's attorney: | MARCOS CUEVAS, Pro se |
| Defendant's attorney: | ERIC T. SCHNEIDERMAN, Attorney General of the State of New York By: Christina Calabrese, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | March 1, 2017 |
| City: | Saratoga Springs |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant, an individual incarcerated in a State correctional facility who is proceeding pro se, filed this claim seeking damages for injuries sustained on May 16, 2016 when he was allegedly assaulted by another inmate at Upstate Correctional facility (CF). Defendant moves to strike the Note of Issue and Certificate of Readiness for Trial (M-89412). Claimant opposes defendant's motion and moves for summary judgment (M-89535). Defendant has submitted no opposition to claimant's motion for summary judgment.
Turning first to defendant's motion to strike the Note of Issue and Certificate of Readiness for Trial (Motion No. M-89412), this claim was filed on August 15, 2016 and issue was joined on August 29, 2016 with the filing of the verified answer. On September 16, 2016 claimant served defendant with discovery demands (Calabrese Affirmation, Exhibit D). On October 14, 2016, claimant filed and defendant received the Note of Issue and Certificate of Readiness, dated October 11, 2016. In the Certificate of Readiness, claimant checked the "Not Required" box in Items 1 and 7 that inquires whether all pleadings were served and whether discovery proceedings then known to be necessary were completed, and left blank Item 8 that inquires whether there were any outstanding requests for discovery. Defendant responded to claimant's discovery demand on October 17, 2016, and this motion to strike the Note of Issue and Certificate of Readiness was filed on October 21, 2016.
The form that claimant used for the Note of Issue and Certificate of Readiness for Trial was taken from 22 NYCRR § 202.21 (b), which applies to actions in the Supreme and County Courts. The form prescribed for the Court of Claims is contained in 22 NYCRR § 206.12 (b). The form used by claimant does not require plaintiffs to check Item 8.
The Rules of the Court of Claims provides that "[n]o action [except prisoner pro se claims] shall be deemed ready for trial unless there is a filed note of issue accompanied by a certificate of readiness. . . in the form prescribed by [the Court's rules]" (22 NYCRR § 206.12 [a]; see 22 NYCRR § 206.12 [b] [Note of Issue and Certificate of Readiness Form]). The Court's rules provide that any party may move to strike the Note of Issue and Certificate of Readiness for Trial within 20 days of service, "upon affidavit showing in what respects action is not ready for trial, and the court may strike the note of issue if it appears that a material fact in the certificate of readiness is incorrect, or that the certificate of readiness fails to comply with the requirements of this section in some material respect" (22 NYCRR § 206.12 [d]).
Defendant argues that the Note of Issue and Certificate of Readiness should be stricken because discovery was not completed when the Note of Issue was filed, that defendant did not have an opportunity to engage in discovery, and that a material fact in the Certificate of Readiness was incorrect. Claimant argues that he checked the "Not Required" box in Item 7 that inquired whether necessary discovery proceedings were completed because he had diligently obtained discovery elsewhere.
As an initial matter, a claimant who is proceeding as a prisoner pro se is not required to file a Note of Issue and Certificate of Readiness (see 22 NYCRR § 206.12 [a]). Rather, trials of such claims are scheduled as soon as practicable within the discretion of the Court (see 22 NYCRR § 206.13). Further, as noted above, the Note of Issue and Certificate of Readiness form used by claimant was the incorrect form prescribed in the Unified Rules for the Supreme and County Court (see 22 NYCRR § 202.21 [b]), and not the form prescribed in the rules for the Court of Claims (see 22 NYCRR § 206.12 [b]), which differ in many respects. In the Certificate of Readiness for Supreme and County Court, the plaintiff is required to indicate in Item 1 whether all pleadings have been served, while the Certificate of Readiness for the Court of Claims requires claimants to indicate in Item 1 whether the pleadings were served and filed. Further, while plaintiffs are not required in the Supreme and County Court's Certificate of Readiness to indicate in Item 8 that there are no outstanding requests for discovery (22 NYCRR § 202.21 [b]), claimants in this Court are required in Item 7 of the Court's Certificate of Readiness to indicate whether there are any outstanding requests for discovery by checking either "Complete," "Waived," or "Not Required" (22 NYCRR § 206.12 [b]).
Defendant's motion will be granted. Defendant's argument that defendant has not "had a full and fair opportunity to engage in the discovery process" (Calabrese Affirmation, ¶ 8) is entirely meritorious inasmuch as the Note of Issue and Certificate of Readiness were filed a mere 46 days after issue was joined. Defendant is correct that there was an outstanding discovery request as of the date of the filing of the Note of Issue and Certificate of Readiness. The Certificate of Readiness filed by claimant neglected to answer whether there were any outstanding discovery requests and therefore failed to comply with the Court's rules in a material respect. Claimant could have waived defendant's compliance with his discovery request and made reference to that waiver in the Certificate of Readiness, but he did not do so. Accordingly, defendant's motion to strike the Note of Issue and Certificate of Readiness will be granted.
Turning next to claimant's motion for summary judgment (Motion No. M-89535), CPLR 3212 (b) provides that a motion for summary judgment must be supported by a copy of the pleadings (see Greene v Wood, 6 AD3d 976 [3d Dept 2004]; Senor v State of New York, 23 AD3d 851, 852 [3d Dept 2005]). This rule applies notwithstanding that the adverse party may have possession of a copy of the pleadings and/or that the pleadings have been filed with the Clerk of the Court of Claims (see Senor v State 23 AD3d, at 851). "[M]ovant's failure to include a copy of the pleadings in the papers supporting a motion for summary judgment 'require[s] summary denial of the motion' " (Greene v Wood, 6 AD3d at 976 quoting Welton v Drobnicki, 298 AD2d 757, 757 [3d Dept 2002]), and thus, claimant's motion must be denied.
Even if the Court were to overlook that omission and find that the record is "sufficiently complete" because the pleadings were contained within defendant's motion to strike the Note of Issue and Certificate of Readiness (Calabrese Affirmation, Exhibits B-C; see Stiber v Cotrone, 153 AD2d 1006, 1007 [3d Dept 1989] lv denied 75 NY2d 703 [1990]; see also Welch v Hauck, 18 AD3d 1096, 1098 [3d Dept 2005] lv denied 5 NY3d 708 [2005]; Greene v Wood, 6 AD3d 976, 977 [3d Dept 2004]), the motion would nonetheless be denied. It is well-established that a "party moving for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, producing sufficient evidence to demonstrate the absence of any material issue of fact" (Giuffrida v Citibank Corp., 100 NY2d 72, 81 [2003]; see Arias v State of New York, 195 Misc 2d 64, 65 [Ct Cl 2003]). The evidence must be submitted in admissible form and must establish the movant's right to judgment as a matter of law (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1067 [1979]). If the movant establishes prima facie entitlement to summary judgment, the burden then shifts to the opponent of the motion to establish, by admissible proof, the existence of genuine issues of material fact (Alvarez v Prospect Hosp. 68 NY2d at 324; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). However, when a movant fails to demonstrate its entitlement to summary judgment as a matter of law in the first instance, the motion must be denied (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Tiano v Lane, 260 AD2d 908 [3d Dept 1999]).
The claim alleges that on May 16, 2016, inmate Fernandez was transferred into claimant's cell at Upstate CF, and stated to claimant that he did not double bunk with inmates unless they were members of the "Trinitarios" gang, and that claimant had to leave the cell. The claim alleges that claimant told Fernandez that he would tell a correction officer to move him and that Fernandez punched him as he approached the cell door and cut him on the chin with a scalpel. The claim also alleges that on February 28, 2016, prior to the assault, claimant had written to Upstate CF officials, the Department of Corrections and Community Supervision (DOCCS) Commissioner and the Governor asking to be put in a single cell because there "was a contract for $1,000 over [his] head as well as a gang hit" (Claim number 128359, ¶ 2).
"Having assumed physical custody of inmates, who cannot protect and defend themselves in the same way as those at liberty can, the State owes a duty of care to safeguard inmates, even from attacks by fellow inmates" (Sanchez v State of New York, 99 NY2d 247, 252-253 [2002]). However, the scope of the State's duty of care is limited to providing "reasonable protection against foreseeable risks of attack by other prisoners" (Sebastiano v State of New York, 112 AD2d 562, 564 [3d Dept 1985]; see Sanchez, 99 NY2d at 253; Flaherty v State of New York, 296 NY 342, 343 [1947]; Dizak v State of New York, 124 AD2d 329, 330 [3d Dept 1986]), and foreseeability rests upon a determination of what the State actually knew, as well as what it should have reasonably known about the risk of an attack on claimant (see Sanchez, at 254; Vasquez v State of New York, 68 AD3d 1275, 1276 [3d Dept 2009]). An inmate-on-inmate assault may be found to have been foreseeable where defendant knew or reasonably should have known that the claimant was at risk of being attacked, that the assailant was prone to perpetrate attacks, or that, based upon the correction facility's prior experience and expertise, a particular class of inmates or a particular location within a facility may present a risk of attack (see Sanchez, at 254-255; Vasquez, at 1276; Littlejohn v State of New York, 218 AD2d 833 [3d Dept 1995]; Colon v State of New York, 209 AD2d 842, 843-844 [3d Dept 1994]; Evans v State of New York, 11 Misc 3d 1065[A], *6 [Ct Cl 2006]).
Claimant's sworn submission avers that the February 28, 2016 letter he sent to defendant notified it of "the gang hit and bounty over my head for $1,000 that the Trinitario gang had on me. Which DOCCS chose to ignore" ("Proof of Burden," sworn to Nov. 2, 2016). The February 28, 2016 letter that is part of claimant's submission recites that claimant was the victim of an assault on February 24, 2016 by a member of the Trinitarios gang, that a contract "was [previously] put on [his] head for [his] assaulting a member of the Trinitario gang at Rikers" and requested a single cell. Although claimant's submission establishes that he had complained to defendant prior to the May 16, 2016 incident that he was at risk of being assaulted by a member of the Trinitario gang, claimant's submission contains no evidence corroborating his bald assertions that Fernandez was a member of the Trinitarios gang or, if he was, that defendant's agents knew or reasonably should have known that Fernandez was a member of the gang, and therefore that claimant was at risk of attack by Fernandez. Thus, claimant has failed to establish prima facie that the assault was reasonably foreseeable.
Accordingly, it is
ORDERED, that defendant's motion number M-89412 is GRANTED, and the Note of Issue and Certificate of Readiness for Trial, dated October 11, 2016 and filed October 14, 2016 is STRICKEN; and it is further
ORDERED, that claimant's motion number M-89535 is DENIED.
March 1, 2017
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims Papers considered: (1) Claim number 128359, filed August 15, 2016; (2) Verified Answer, filed August 29, 2016; (3) Note of Issue and Certificate of Readiness for Trial, filed October 14, 2016; (4) Notice of Motion to Strike Note of Issue (M-89412), dated October 21, 2016; (5) Affirmation of Christina Calabrese, AAG, dated October 21, 2016, with Exhibits A-F; (6) Response to Defendant's Motion to Strike Note of Issue, dated October 27, 2016; (7) Notice of Motion for Summary Judgment (M-89535), filed November 7, 2016; (8) "Affidavit" of Marcos Cuevas in Support of Motion for Summary Judgment, undated, with the following attachments: - "Proof of Burden" of Marcos Cuevas, sworn to November 2, 2016; - Inmate Grievance Materials and Memoranda; - Correspondence of Marcos Cuevas to Governor Cuomo, DOCCS Commissioner Anthony Annucci and Deputy for Security, dated February 28, 2016; - Correspondence of Michael Cassidy, Managing Attorney of Prisoners' Legal Services of New York to Marcos Cuevas, dated September 20, 2016; - Ambulatory Health Records of Marcos Cuevas, dated February 24 to February 28, 2016 and May 16, 2016; - Contraband Receipt, dated May 16, 2016; - Four DOCCS Memoranda, dated May 16, 2016, regarding the May 16, 2016 incident and subsequent escort to the infirmary; - Inmate Injury Report, dated May 16, 2016; - Photo Card, dated May 16, 2016; - Exhibits A-P; - Defendant's Response to Claimant's Demand for Discovery, dated October 17, 2016; - Unusual Incident Report, dated June 23, 2016; - Upstate CF Assistant Form for February 24, 2016 Inmate Misbehavior Report; - Tier III Case Data Sheet for February 24, 2016 Incident Date; - Memorandum from Tier Office to Loronix, dated March 1, 2016, with Attachment; - Fight Investigation Form, dated February 24, 2016; - Inmate Misbehavior Report, dated February 24, 2016, with Tier Hearing Disposition Sheet (4 pages), received March 16, 2016 and Tier Hearing Record Sheet (1 page), for hearing begun on March 4, 2016; - Inmate Misbehavior Report, dated March 20, 2016, with Tier Hearing Disposition Sheet (3 pages), received April 1, 2016; - Tier III Case Data Sheet with May 16, 2016 Inmate Misbehavior Report, Tier Hearing Disposition Sheet (4 pages), received May 27, 2016, and Tier Hearing Record Sheet, received May 27, 2016; and (9) Affidavit of Service of Motion Papers (M-89535) and Response to Defendant's Motion to Strike Note of Issue (M-89412) of Marcos Cuevas, sworn to November 2, 2016.