Opinion
# 2013-048-123 Claim No. 119501 Motion No. M-83637
12-19-2013
BERTRAM PAYNE v. THE STATE OF NEW YORK
BERTRAM PAYNE, Pro Se HON. ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Thomas R. Monjeau, Esq. Assistant Attorney General
Synopsis
Claimant's motion for summary judgment denied as he failed to establish his prima facie entitlement thereto.
Case information
UID: 2013-048-123 Claimant(s): BERTRAM PAYNE Claimant short name: PAYNE Footnote (claimant name) : Defendant(s): THE STATE OF NEW YORK Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): 119501 Motion number(s): M-83637 Cross-motion number(s): Judge: GLEN T. BRUENING Claimant's attorney: BERTRAM PAYNE, Pro Se HON. ERIC T. SCHNEIDERMAN Attorney General of the State of New York Defendant's attorney: By: Thomas R. Monjeau, Esq. Assistant Attorney General Third-party defendant's attorney: Signature date: December 19, 2013 City: Albany Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
Claimant commenced this action seeking damages sustained as a result of Defendant's alleged negligence when he ingested contaminated food while an inmate at Eastern Correctional Facility under the supervision of the Department of Correctional Services (DOCS). Specifically, Claimant contends that on September 14, 2010 he consumed "Rice Diablo and Mexican Corn" served by Defendant for the evening meal, after which Claimant began to suffer from abdominal pain, diarrhea and other symptoms. Claimant now moves for summary judgment for the relief demanded in the Claim, relying on the doctrine of res ipsa loquitur. Defendant opposes Claimant's motion.
The Department of Correctional Services (DOCS) is now known as the Department of Corrections and Community Supervision (DOCCS). Inasmuch as the Claim relates to acts that occurred prior to the name change, this Decision will refer to the Executive Agency by its former name.
Claimant's motion, filed July 1, 2013, referenced a return date of April 15, 2013. The affidavit of service attached to the motion attests to service of the motion on the Attorney General's office on March 13, 2013. By correspondence dated July 3, 2013, the Clerk's office notified the parties that Claimant's motion was assigned the return date of July 24, 2013. By correspondence dated July 29, 2013, Defendant's counsel requested an adjournment of the motion return date on the grounds that Defendant's counsel was not aware that the motion papers, received by the Attorney General's Office on July 15, 2013, were connected to the July 24, 2013 return date assigned by the Clerk. The Court granted Defendant's request and adjourned the motion return date to August 28, 2013 (see Correspondence from the Court, dated July 30, 2013). While Claimant objects to the adjournment of the motion return date (see Correspondence from Claimant, dated August 1, 2013), given the brief delay, the basis for the request, and the lack of prejudice to Claimant, the Court, in its discretion, finds good cause for the adjournment, and denies Claimant's request that Defendant's failure to timely oppose the motion be considered "a default" (Correspondence from Claimant, dated August 1, 2013; see also Court of Claims Act § 9 [8]; CPLR 2004; Associates First Capital v Crabill, 51 AD3d 1186, 1187 [3d Dept 2008]).
As movant for summary judgment, Claimant bears the initial burden of establishing his right to summary judgment as a matter of law by tendering sufficient evidence, in admissible form, to eliminate any material issues of fact from the case (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). CPLR 3212 (b) provides that such a motion shall be supported by affidavit, by a copy of the pleadings and by other available proof, such as depositions and written admissions. The affidavit shall be by a person having knowledge of the facts; it shall recite all the material facts; and it shall show that there is no defense to the cause of action or that the cause of action or defense has no merit.
In this regard, "conclusory assertions are insufficient to demonstrate the absence of any material issues of fact" (Ayotte v Gervasio, 81 NY2d 1062, 1063 [1993]), and the failure to make the initial prima facie showing requires the denial of Claimant's motion, "regardless of the sufficiency of the opposing papers" (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). As is relevant to Claimant's motion, Correction Law § 137 (3) provides that inmates are entitled to, among other things, "a sufficient quantity of wholesome and nutritious food." In an action for negligence based on alleged food poisoning, Claimant must establish both a defect in Defendant's food and that, due to this defect, Claimant was injured (see Williams v White Castle Sys., 4 AD3d 161, 162 [1st Dept 2004]; Valenti v Great Atl. & Pac. Tea Co., 207 AD2d 340, 341 [2d Dept 1994]). In a personal injury action, when a claimant is unable to prove Defendant's negligence by direct evidence, the doctrine of res ipsa loquitur permits, in certain matters, the trier of fact to consider circumstantial evidence and infer that Defendant was negligent (Morejon v Rais Constr. Co., 7 NY3d 203, 205-206 [2006]; Brumberg v Cipriani USA, Inc., 110 AD3d 1198, 1200 [3d Dept 2013]). For the doctrine to apply, Claimant must establish that "(1) the event [is] a kind which ordinarily does not occur in the absence of someone's negligence; (2) it [is] caused by an agency or instrumentality within the exclusive control of the defendant; [and] (3) it must not have been due to any voluntary action or contribution on the part of the [claimant]" (Morejon v Rais Constr. Co., 7 NY3d at 209 [internal quotation marks and citations omitted]). Only in the rarest of circumstances - "when the [claimant's] circumstantial proof is so convincing and the defendant's response so weak that the inference of defendant's negligence is inescapable" - would a Claimant be entitled to summary judgment (id.).
In support of his motion, Claimant points to Defendant's Response to Claimant's Notice to Admit, in which Defendant admitted, among other things, that 1) Claimant was present at Eastern on September 14, 2010; 2) the last meal of the day on September 14, 2010 consisted of "Rice Diablo w/meat, Mexican Corn, Bread/Margarine, Yellow Cake w/Cho. Icing and a Beverage, and that the 'Religious Alternative' meal was Rice w/Red Beans"; 2) the New York State Department of Health (DOH),Wadsworth Center, issued a report dated October 18, 2010 which, as a result of tests performed on corn samples from a meal served at Eastern on September 15, 2010, revealed clostridium perfringens (see Affidavit of Bertram Payne, Exhibit A [Claim, Exhibit D]); and 3) medical records, which reveal that Claimant sought treatment on September 16, 2010 for stomach pain and diarrhea. Claimant argues that, because of his incarceration, Defendant maintained exclusive control over the facility, resulting in the lack of contributory negligence and an inference of some negligence of the Food Service Supervisor (see Affidavit of Bertram Payne, ¶ 21, page 8). By this information, Claimant argues that he has established a defective condition, that he thereafter suffered from illness after consuming the defective food, and that negligence is inferred under the doctrine of res ipsa loquitur.
In opposition, Defendant argues that Claimant has failed to establish his prima facie entitlement to summary judgment. Defendant notes that it did not admit that 1) Claimant consumed any allegedly contaminated food; 2) the food was actually contaminated; 3) the process used by Defendant in preparing and providing food to Claimant was in any way compromised or negligent; 4) any alleged contamination was caused by Defendant; or that 5) Claimant was sickened by consuming the "Mexican Corn" (Affirmation of Thomas R. Monjeau, ¶ 9). Defendant contends that there are unresolved questions of fact including what, if anything, contaminated the food, how and where any such contamination was introduced to the food, whether Defendant complied with regulations for preparing and handling food, and whether the consumption of the Mexican Corn caused Claimant's illness.
In this case, while Claimant has established that he consumed corn served at the facility for the evening meal on September 14, 2010 (see Affidavit of Bertram Payne, Exhibit A [Claim, ¶ 5]), the report issued from the DOH Wadsworth Center is not in admissible form and, as such, is insufficient to establish that the corn he consumed was tainted or otherwise defective (see Ulster County, N.Y. v CSI, Inc., 95 AD3d 1634, 1636 [3d Dept 2012]). In any event, that report reveals that clostridium perfringens were found in a sample of corn served at Eastern on September 15, 2010. This discrepancy, in and of itself, warrants denial of Claimant's motion (see Affidavit of Bertram Payne, Exhibit A [Claim, Exhibit D], Exhibit E, [Defendant's Response to Claimant's Notice to Admit, ¶ 8]). Claimant has also failed to show that the corn he consumed was within the exclusive control of DOCS staff before it was served to him. While this element does not require Claimant to "eliminate every alternative explanation for the event, [he must] demonstrate that the likelihood of causes other than the defendant['s] negligence is so reduced that the greater probability lies at defendant['s] door, rendering it more likely than not that the injury was caused by defendant['s] negligence" (Brumberg v Cipriani USA, Inc., 110 AD3d at 1201). While Claimant surmises that Defendant was negligent in its failure to properly "test, inspect or refrigerate the Mexican Corn as required by the DOCCS Food Service Manual" (see Affidavit of Bertram Payne, ¶ 21, page 9), there is no evidence in the record establishing how and in what manner the food was prepared or served. Furthermore, other than conclusory allegations, there is no evidence that Claimant's illness was causally related to his consumption of tainted corn (see Williams v White Castle Sys., 4 AD3d at 162). Based on the foregoing, the inference of Defendant's negligence is not "inescapable" (Morejon v Rais Constr. Co., 7 NY3d at 209), and the Court concludes that this is not "the exceptional case in which no facts are left for determination" (id. at 212). Thus, while Claimant may be entitled to an inference of negligence upon establishing, at trial, the three elements of res ipsa loquitur, at this stage of the proceedings, Claimant has failed to establish his prima facie entitlement to summary judgment. Since Claimant failed to meet his prima facie burden in the first instance, his motion must be denied regardless of the sufficiency of Defendant's opposing papers (Winegrad v New York Univ. Med. Ctr., 64 NY2d at 853).
Indeed, Correction Law § 171 provides that inmates may be employed in, among other areas, the facility's kitchen.
Accordingly, Claimant's Motion No. M-83637 is denied.
December 19, 2013
Albany, New York
GLEN T. BRUENING
Judge of the Court of Claims
The following papers were read and considered by the Court:
Claim, filed February 14, 2011;
Notice of Motion, filed July 1, 2013;
Affidavit of Bertram Payne, sworn to on March 30, 2013, with Exhibits A-F;
Claimant's Reply to Defendant's Failure to Oppose Motion for Summary Judgment Pursuant to CPLR § 3212, filed July 31, 2013;
Correspondence from Thomas R. Monjeau, Esq., dated July 29, 2013;
Correspondence from the Court, dated July 30, 2013;
Claimant's Reply to Affirmation in Opposition to Motion for Summary Judgment, sworn to on August 20, 2013, with Exhibit A;
Affirmation of Thomas R. Monjeau, Esq., dated August 6, 2013, with Exhibit A.