Opinion
# 2017-018-836 Claim No. 128786 Motion No. M-90770
10-11-2017
DARYL NORRELL v. STATE OF NEW YORK
DARYL NORRELL Pro Se ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Ray A. Kyles, Esquire Assistant Attorney General
Synopsis
Claimant's motion for summary judgment is granted solely to the extent that Defendant's ninth affirmative defense is dismissed, and it is otherwise denied.
Case information
| UID: | 2017-018-836 |
| Claimant(s): | DARYL NORRELL |
| Claimant short name: | NORRELL |
| Footnote (claimant name) : | |
| Defendant(s): | STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 128786 |
| Motion number(s): | M-90770 |
| Cross-motion number(s): | |
| Judge: | DIANE L. FITZPATRICK |
| Claimant's attorney: | DARYL NORRELL Pro Se |
| Defendant's attorney: | ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Ray A. Kyles, Esquire Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | October 11, 2017 |
| City: | Syracuse |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant moves for summary judgment on the ground that Defendant has no meritorious defense to his cause of action, and Defendant opposes the motion. The claim arises from an incident which occurred while Claimant, an inmate at Cape Vincent Correctional Facility, was working his assignment to wash pots on June 12, 2016, at approximately 5:00 p.m. As he was filing a pail from a larger kettle, he removed the top of the kettle and steam arose burning his left hand, despite the gloves he was wearing. He was treated that day at the infirmary with ice and medication and then sent back to the mess hall. Claimant states he still suffers from severe pain and contends that he was not given proper safety equipment, was not properly trained for his job, and did not receive proper medical treatment. Defendant answered the claim and asserted nine affirmative defenses.
In addition to the notice of motion, Claimant has submitted a purported affidavit, the pleadings and a verified "Reply" to Defendant's answer and affirmative defenses. The relevant averments in the submissions address each affirmative defense and are similar to those contained in the claim. Defendant submitted an affirmation in opposition with a copy of the claim.
The "affidavit" has no signature page, but attached to Exhibit D is a verification page purporting to the truth of the "Motion for Summary Judgment."
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]). The evidence submitted on the motion for summary judgment must be viewed in the light most favorable to the non-moving 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.
An affirmative defense should not be dismissed unless Claimant can establish, as a matter of law, that the defense lacks merit (see CPLR 3211 [b]; Thy Tran v Avis Rent A Car, AD2d 731, 732 [3d Dept 2001]; Santilli v Allstate Ins. Co., 19 AD3d 1031, 1032 [4th Dept 2005]). If the availability of the defense is questionable, it should not be dismissed (Pellegrino v Millard Fillmore Hosp., 140 AD2d 294 [4th Dept 1988]). The Court has reviewed Defendant's nine affirmative defenses and Claimant's submissions addressing the defenses. Claimant's conclusory assertions are insufficient to establish, as a matter of law, that the first, fourth, fifth, sixth, seventh, or eighth affirmative defenses lack merit. Defendant's second affirmative defense for failure to state a cause of action also should not be dismissed (Strauss v Stoneledge Farms, 250 AD2d 1186 [4th Dept 1998]; Whelehan v Yazback, 84 AD2d 673 [4th Dept 1981]).
Defendant's ninth affirmative defense should, however, be dismissed as Claimant has no duty or requirement to bring an Article 78 proceeding before asserting an action for compensatory damages in the Court of Claims for negligence or medical malpractice (Court of Claims Act § 10 [3-a]).
Claimant has also failed to establish his causes of action as a matter of law. Although Defendant owes Claimant a duty of care, these are questions of fact regarding any breach of that duty.
Claimant's motion is hereby GRANTED solely to the extent that Defendant's ninth affirmative defense is DISMISSED, and it is otherwise DENIED.
October 11, 2017
Syracuse, New York
DIANE L. FITZPATRICK
Judge of the Court of Claims The Court has considered the following in deciding this motion: 1) Notice of Motion. 2) Unsworn, unsigned "Affidavit of Daryl Norrell" with exhibits attached thereto. 3) Affirmation of Ray A. Kyles, Esquire, Assistant Attorney General, in opposition, with exhibit attached thereto. 4) Unsigned, undated Memorandum of Law submitted by Claimant.