Opinion
# 2015-018-656 Claim No. 123943 Motion No. M-87164
11-10-2015
TROY McRAE v. STATE OF NEW YORK
TROY McRAE Pro Se ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Thomas Trace, Esquire Senior Attorney
Synopsis
Claimant's motion for summary judgment is denied. Triable questions of fact exist.
Case information
| UID: | 2015-018-656 |
| Claimant(s): | TROY McRAE |
| Claimant short name: | McRAE |
| Footnote (claimant name) : | |
| Defendant(s): | STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 123943 |
| Motion number(s): | M-87164 |
| Cross-motion number(s): | |
| Judge: | DIANE L. FITZPATRICK |
| Claimant's attorney: | TROY McRAE Pro Se |
| Defendant's attorney: | ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Thomas Trace, Esquire Senior Attorney |
| Third-party defendant's attorney: | |
| Signature date: | November 10, 2015 |
| City: | Syracuse |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant brings a motion seeking summary judgment finding the State liable as a matter of law for allowing Claimant to be physically assaulted by another inmate. Defendant opposes the motion.
On February 19, 2014, Claimant filed a claim seeking damages from the State for his personal injuries resulting from an attack by a fellow inmate at Riverview Correctional Facility on February 7, 2014, at approximately 10:50 a.m. Claimant alleges that about a month prior to the February 7 incident, soon after he arrived at A-2 dorm, he played dominoes with Inmate Paredes. The two bet on the game, and Inmate Paredes allegedly lost about 90 stamps in the bet. Claimant asserts that Inmate Paredes agreed to pay half his debt on the following Thursday. Thereafter, Claimant approached Inmate Paredes and asked about "his debt." Claimant alleges that Inmate Paredes became aggressive and began throwing punches at him. The dorm correction officer intervened and directed Inmate Paredes to get off of Claimant. Claimant alleges that after the incident, others in the dorm began harassing him about why he did not retaliate against Inmate Paredes.
Inmate Paredes did not pay the stamps he allegedly owed, so on February 7, 2014, Claimant asked him about the stamps he owed while Claimant was working, cleaning the dorm. Inmate Paredes indicated he was not going to provide the stamps and when Claimant turned, Inmate Paredes took a broom and began striking Claimant, hitting him above his left eye and the left part of his face. He was taken to the infirmary.
Claimant alleges that later on he tried unsuccessfully to tell one correction officer that Inmate Paredes was still threatening him, and that the inmate intentionally struck him with the broom. Claimant also alleges the State was deliberately indifferent after the first incident. Claimant further alleges the State failed to separate Claimant and Inmate Paredes after the first incident. Claimant has suffered personal injuries as a result, loss of good time credit, loss of programs, and loss of regular prison life.
Defendant filed a verified answer on April 4, 2014, denying the allegations and alleging three affirmative defenses: Claimant's comparative negligence; the negligence or conduct of a third party caused Claimant's injuries; and the State's privilege and immunity.
Claimant, in this motion, alleges that the material facts are not in dispute. He asserts that he had to have a broom and dust pan for his job, he was working when the other inmate assaulted him, and the State bears the responsibility for keeping him safe because he is an inmate in the State's custody.
Having custody of inmates, the State does bear a duty to use reasonable care to protect those inmates from the risk of assault by other inmates (Sanchez v State of New York, 99 NY2d 247, 252 [2002]). This reasonable care is based upon the risks that the State knew or should have known existed at the time - in other words, the State owes a duty to protect inmates from the foreseeable risk of harm from other inmates (Id.; Villar v County of Erie, 126 AD3d 1295 [4th Dept 2015]; Di Donato v State of New York, 25 AD3d 944 [3d Dept 2006]). What is a foreseeable risk and whether Defendant fulfilled its duty of reasonable care are typically questions of fact (Malley v Alice Hyde Hosp. Assn. 297 AD2d 425, 425 [3d Dept 2002]; Di Ponzio v Riordan, 224 AD2d 139, 141-142 [4th Dept 1996]; Johnson v State of New York, 174 Misc 2d 193, 200-201 [Ct Cl 1997]).
Summary judgment, as is often said, is a drastic remedy which should only be granted where there are no issues of fact and the claim can be decided as a matter of law (Sillman v Twentieth Century-Fox Film Corp. 3 NY2d 395 [1957]). On a motion for summary judgment the movant has the burden to establish his right to judgment as a matter of law by proof in admissible form (Friends of Animals v Associated Fur Mfrs. 46 NY2d 1065, 1067-1068 [1979]). The opposing party must then present evidentiary proof to establish the existence of a material fact which would require a trial (Id.; Zuckerman v City of New York, 49 NY2d 557 [1980]). It is not the place of the Court, on a motion for summary judgment, to determine credibility (see Knepka v Tallman, 278 AD2d 811 (4th Dept 2000]; Furlong v Storch, 132 AD2d 866, 868 [3d Dept 1987]). The evidence submitted on the motion for summary judgment must be viewed in the light most favorable to the nonmoving party, giving that party the benefit of any favorable inference
(Ruzycki v Baker, 301 AD2d 48, 50 [4th Dept 2002]; Boston v Dunham, 274 AD2d 708, 709 [3d Dept 2000]). The motion should not be granted where there are questions of fact or where an issue is "arguable." (Sillman, 3 NY2d at 404, quoting Barrett v Jacobs, 255 NY 520, 522 [1931]).
Here, the Claimant submits as proof of his claim: his affidavit in support, an unsworn "Statement of Material Facts," a copy of the claim, and pictures of his injuries and redacted documents, not in admissible form. Defendant provides copies of several of the same documents, redacting only the name and injuries of the other inmate. Defendant's exhibits were in admissible form, and reflect a material question of fact exists as to who the initial aggressor was on February 7, 2014. This is an important consideration to determine whether Defendant's conduct breached its duty of care to Claimant, whether Claimant's injuries were caused by his own culpable conduct, and proximate cause.
Claimant failed to submit a copy of Defendant's answer as required by the statute (CPLR 3212 [b]) with his original motion documents, this alone is sufficient to deny the motion (Deer Park Assoc. v Robbins Store, Inc. 243 AD2d 443 [2d Dept 1997]).
Accordingly, based upon the foregoing, Claimant's motion is DENIED.
November 10, 2015
Syracuse, New York
DIANE L. FITZPATRICK
Judge of the Court of Claims The Court has considered the following in deciding this matter: 1) Notice of Motion. 2) Affidavit of Troy McRae, in support, sworn to July 6, 2015, with attachments thereto. 3) Claimant's Memorandum of Law dated July 1, 2015. 4) Affirmation of Thomas Trace, Esquire, in opposition. 5) Claimant's Reply to Defendant's Affirmation in Opposition, in support, sworn to September 30, 2015.