Opinion
# 2015-010-002 Claim No. 122065 Motion No. M-85983
01-29-2015
KENNETH NICHOLSON v. THE STATE OF NEW YORK
KENNETH NICHOLSON Pro Se HON. ERIC T. SCHNEIDERMAN Attorney General for the State of New York By: Terrance K. DeRosa, Assistant Attorney General
Synopsis
Claimant's motion for summary judgment denied, claimant failed to serve defendant with a copy of the motion papers.
Case information
| UID: | 2015-010-002 |
| Claimant(s): | KENNETH NICHOLSON |
| Claimant short name: | NICHOLSON |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 122065 |
| Motion number(s): | M-85983 |
| Cross-motion number(s): | |
| Judge: | Terry Jane Ruderman |
| Claimant's attorney: | KENNETH NICHOLSON Pro Se |
| Defendant's attorney: | HON. ERIC T. SCHNEIDERMAN Attorney General for the State of New York By: Terrance K. DeRosa, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | January 29, 2015 |
| City: | White Plains |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
The following papers numbered 1-2 were read and considered by the Court on claimant's motion for summary judgment:
Notice of Motion, Claimant's Supporting Affidavit and Exhibits............................1
Defendant's Letter Dated January 28, 2015..............................................................2
Claimant seeks summary judgment on his claim alleging that, during his incarceration at Sing Sing Correctional Facility, on October 14, 2012, defendant's negligence was a contributory cause of an attack upon him by another inmate. Claimant, however, failed to serve defendant with a copy of the motion papers.
It is well settled that the State is required to use reasonable care to protect the inmates of its correctional facilities from foreseeable risks of harm including the risk of attack by other inmates (see Flaherty v State of New York, 296 NY 342 [1947]; Littlejohn v State of New York, 218 AD2d 833 [3d Dept 1995]). "[T]he State's duty to prisoners does not mandate unremitting surveillance in all circumstances, and does not render the State an insurer of inmate safety. *** The mere occurrence of an inmate assault, without credible evidence that the assault was reasonably foreseeable, cannot establish the negligence of the State" (Sanchez v State of New York, 99 NY2d 247, 256 [2002]). The mere fact that a correction officer may not have been present when an assault occurred does not give rise to an inference of negligence, absent a showing that prison officials had notice of a foreseeable dangerous situation (see Arteaga v State of New York, 72 NY2d 212, 216 [1988] [defendant is entitled to deference in managing the safety and order of its facility]; see Colon v State of New York, 209 AD2d 842, 844 [3d Dept 1994]).
Summary judgment is a drastic remedy which should not be granted unless it is made clear by the proponent of the application that there are no genuine issues of material fact (see Andre v Pomeroy, 35 NY2d 361, 364 [1974]). Moreover, summary judgment is "rarely granted in negligence cases since the very question of whether a defendant's conduct amounts to negligence is inherently a question for the trier of fact in all but the most egregious instances" (Johannsdottir v Kohn, 90 AD2d 842 [2d Dept 1982]). In Sanchez v State of New York, 99 NY2d at 254, the Court of Appeals held that, "[t]o obtain summary judgment [in an inmate-on-inmate assault case], the State must meet a high threshold: there must be only one conclusion that can be drawn from the undisputed facts-that as a matter of law injury to [the inmate] was not reasonably foreseeable." (see also Elnandes v State of New York, 11 AD3d 828 [3d Dept 2004] [attack with metal object not foreseeable where assailant had no prior encounters with claimant and was not listed on claimant's enemies list]).
The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law by tendering sufficient evidence to demonstrate the absence of any material issues of fact (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). "Failure to make such [a] prima facie showing requires a denial of the motion regardless of the sufficiency of the opposing papers"(Alvarez v Prospect Hosp., 68 NY2d at 324; see Winegrad v New York Univ. Med. Ctr., 64 NY2d at 853). Here, the Court finds that, claimant's application must be denied because he failed to serve defendant with a copy of the motion papers and there are numerous issues of material fact which require a trial.
Accordingly, claimant's motion for summary judgment is DENIED.
January 29, 2015
White Plains, New York
Terry Jane Ruderman
Judge of the Court of Claims