Opinion
# 2018-032-073 Claim No. 125258 Motion No. M-92087 Cross-Motion No. CM-92503
11-26-2018
SANTO RODRIGUEZ v. THE STATE OF NEW YORK
Sonin & Genis By: Robert J. Genis, Esq. Hon. Barbara D. Underwood, Attorney General By: Douglas R. Kemp, Assistant Attorney General
Synopsis
Defendant established that it was entitled to summary judgment on claimant's negligence claim. First, the claim failed to comply with Court of Claims Act § 11 (b). Second, the evidence submitted by defendant established its prima facie entitlement to summary judgment. The Court declined to consider claimant's opposition to defendant's summary judgment motion and cross motion for summary judgment, which were submitted late and without good cause for the delay.
Case information
| UID: | 2018-032-073 |
| Claimant(s): | SANTO RODRIGUEZ |
| Claimant short name: | RODRIGUEZ |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 125258 |
| Motion number(s): | M-92087 |
| Cross-motion number(s): | CM-92503 |
| Judge: | JUDITH A. HARD |
| Claimant's attorney: | Sonin & Genis By: Robert J. Genis, Esq. |
| Defendant's attorney: | Hon. Barbara D. Underwood, Attorney General By: Douglas R. Kemp, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | November 26, 2018 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
The instant claim was filed on or about November 20, 2014, seeking damages for injuries sustained while claimant, an inmate at Franklin Correctional Facility (Franklin), was using a "decline weight bench" in the Main Yard of Franklin (Verified Claim ¶ 2). The incident occurred on August 24, 2014, causing a crush injury that resulted in fractures of claimant's third and fourth fingers on his right hand (Verified Claim ¶ 5). Defendant now moves for summary judgment on two grounds. First, defendant argues that the claim fails to particularize how the defendant's alleged negligence caused the claimant's injuries and thus fails to comply with the requirements of Court of Claims Act § 11 (b). Second, defendant argues that it has established its prima facie entitlement to summary judgment. Claimant submitted opposition papers to defendant's motion and cross-moved for summary judgment. Defendant objected to claimant's submission of opposition papers and cross motion, arguing that they were untimely filed and served. Accordingly, the Court will first address the issue of whether defendant's papers and cross motion were timely served.
Timeliness of Claimant's Opposition Papers and Cross-Motion for Summary Judgment
Defendant's motion for summary judgment was served on April 6, 2018 with return date of May 2, 2018. Defendant's motion requested that any opposing papers or cross motions be served seven days in advance of the return date pursuant to CPLR 2214 (b). Thereafter, the Court adjourned the return date of defendant's motion to June 6, 2018. On June 5, 2018, claimant requested, and the Court granted, an adjournment of the return date of the motion to July 6, 2018. Claimant served a response to defendant's motion along with a cross motion for summary judgment on July 5, 2018. Defendant now asks that the Court disregard the response to defendant's motion and claimant's cross motion for summary judgment, as they were not served seven days in advance of the return date pursuant to CPLR 2214 (b).
CPLR 2214 (b) requires that answering papers and any notice of cross motion must be served at least seven days before the return date where a notice of motion is served a least 16 days before the return date. Here, defendant's motion for summary judgment was served on April 6, 2018 and designated a return date of May 2, 2018--26 days later. The Court then adjourned the return date to June 6, 2018. On June 5, 2018, claimant requested an adjournment of the return date of defendant's motion for summary judgment to July 6, 2018. By letter dated June 6, 2018, the Court granted claimant's request and extended the return date of defendant's motion for summary judgment to July 6, 2018. Pursuant to CPLR 2214 (b), claimant was required to serve a response to defendant's motion for summary judgment and any notice of cross motion no later than June 29, 2018. Thus, claimant's response papers and notice of cross motion served on July 5, 2018 are untimely under CPLR 2214 (b).
Claimant's cross motion for summary judgment is also untimely under CPLR 3212 (a), which requires that motions for summary judgment be made no later than 120 days from the filing of the note of issue, unless such deadline is shortened by the Court. Claimant's note of issue was filed on January 8, 2018. Pursuant to the Court's Scheduling Order dated February 26, 2018, motions for summary judgment were to be served within 90 days of the filing of the note of issue. Accordingly, claimant's motion for summary judgment was due no later than April 9, 2018. Claimant did not serve his cross motion for summary judgment until July 5, 2018. Not only is claimant's cross motion untimely according to the Court's Scheduling Order, it was also served untimely pursuant to CPLR 3212 (a), which states that motions for summary judgment be made "no later than [120] days after the filing of the note of issue." Under the 120-day requirement, claimant's cross motion for summary judgment was due no later than May 8, 2018.
As claimant's response papers and notice of cross motion are untimely, the Court may only consider them if claimant shows good cause for the delay (CPLR 3212 [a]; Coty v County of Clinton, 42 AD3d 612, 614 [3d Dept. 2007]; Bush v Hayward, 156 AD2d 899, 901 [3d Dept. 1989]). By letter dated July 12, 2018, the Court directed claimant to provide the Court with an explanation as to why the response papers and notice of cross motion were untimely served. By letter dated July 20, 2018, claimant attributed the delay to a "miscommunication" between claimant's counsel and counsel's calendar clerk due to the calendar clerk's maternity leave and counsel's trial schedule.
The Court finds that claimant's proffered excuse does not constitute good cause for the late filing (see Kenny v Turner Const. Co., 155 AD3d 479, 480 [1st Dept. 2017] [finding that counsel's excuse that he was on trial for two weeks insufficient to show good cause]; Maschi v City of New York, 110 AD3d 460, 460 [1st Dept. 2013] [finding that "law office failure" did not satisfy the good cause requirement for a late summary judgment motion]; Bejarano v City of New York, 18 AD3d 681, 682 [2d Dept. 2005] [finding that defendant's large caseload did not excuse its untimely filing]; Breiding v Giladi, 15 AD3d 435, 435 [2d Dept. 2005] [finding that "clerical inadvertence" did not excuse untimely filing of summary judgment motion]; Hartwich v Young, 149 AD2d 762, 765 [3d Dept. 1989] [finding that law office failure was insufficient to show good cause for counsel's late responsive papers], app denied, 75 NY2d 701 [1989], rearg denied, 75 NY2d 947 [1990]). Accordingly, the Court declines to consider claimant's untimely opposition papers and cross motion for summary judgment, as claimant failed to show good cause for the delay.
Defendant's Motion for Summary Judgment
"Summary judgment is a drastic remedy that 'should not be granted where there is any doubt as to the existence of [triable] issues [of fact], or where the issue is arguable'" (Hall v Queensbury Union Free Sch. Dist., 147 AD3d 1249, 1250 [3d Dept. 2017], quoting Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957]; see Rotuba Extruders v Ceppos, 46 NY2d 223, 231 [1978]; Stukas v Streiter, 83 AD3d 18, 23 [2d Dept. 2011]). The proponent of the motion "must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact" (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986] [citations omitted]; see Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; Robinson v Kingston Hosp., 55 AD3d 1121, 1123 [3d Dept. 2008]). "Once this showing has been made, however, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action" (Alvarez v Prospect Hosp., 68 NY2d at 324; see Town of Kirkwood v Ritter, 80 AD3d 944, 945-946 [3d Dept. 2011]). In considering the motions before it, the Court "must view the evidence in a light most favorable to the nonmoving party and accord that party the benefit of every reasonable inference from the record proof, without making any credibility determinations" (Black v Kohl's Dept. Stores, Inc., 80 AD3d 958, 959 [3d Dept. 2011]; see Winne v Town of Duanesburg, 86 AD3d 779, 780-781 [3d Dept. 2011]).
First, defendant argues that the claim should be dismissed for its failure to comply with Court of Claims Act § 11 (b). Specifically, defendant argues that the claim fails to state how claimant was injured.
"Court of Claims Act § 11 (b) 'places five specific substantive conditions upon [defendant's] waiver of sovereign immunity by requiring the claim to specify: (1) the nature of the claim; (2) the time when it arose; (3) the place where it arose; (4) the items of damage or injuries claimed to have been sustained; and (5) the total sum claimed' " (Davila v State of New York, 140 AD3d 1415, 1416 [3d Dept. 2016], quoting Lepkowski v State of New York, 1 NY3d 201, 206 [2003] [internal quotation marks omitted]). "Absolute exactness is not required, but the claim must enable prompt investigation and be sufficiently specific to enable [a] defendant to reasonably infer the basis for its alleged liability" (Davila v State of New York, 140 AD3d at 1416 [internal quotation marks and citations omitted]; see Morra v State of New York, 107 AD3d 1115, 1115 [3d Dept. 2013]; Deep v State of New York, 56 AD3d 1260, 1261 [4th Dept. 2008]). It is well settled that "[t]he State's waiver of immunity from suits for money damages is not absolute, but rather is contingent upon a claimant's compliance with specific conditions placed on the waiver by the Legislature" (Lepkowski v State of New York, 1 NY3d at 206; see Court of Claims Act § 8; Alston v State of New York, 97 NY2d 159, 163 [2001]). Accordingly, "[f]ailure to strictly comply with these substantive pleading requirements is a jurisdictional defect warranting dismissal for lack of subject matter jurisdiction" (Signature Health Ctr., LLC v State of New York, 42 AD3d 678, 679 [3d Dept. 2007]; see Kolnacki v State of New York, 8 NY3d 277, 280 [2007]; Lepkowski v State of New York, 1 NY3d at 207-208; Alston v State of New York, 97 NY2d at 164).
The claim states, among other allegations, that defendant was negligent in failing to maintain, inspect and repair the decline weight bench that allegedly caused claimant's injuries. The claim goes on to state that defendant failed to place adequate leg supports on the decline weight bench and failed to adequately supervise the inmates using the decline weight bench.
Although the claim contains a lengthy list of numerous negligent acts allegedly committed by defendant, the Court agrees with defendant that the claim does not adequately state the nature of the claim. The conclusory allegations of negligence contained in the claim are "insufficient to permit defendant to investigate its liability" (Sommer v State of New York, 131 AD3d 757, 758 [3d Dept. 2015]; Grumet v State of New York, 256 AD2d 441 [2d Dept. 1998]; see Sega v State of New York, 246 AD2d 753, 755 [3d Dept. 1998], lv denied 92 NY2d 805 [1998]; Wilson v State of New York, 35 Misc 3d 227, 232-233 [Ct Cl 2011]). The allegations of negligence contained in the claim are numerous but none are supported by any factual assertions that explain how the State's negligent acts caused claimant's injuries (Jones v State of New York, UID No. 2018-038-548 [Ct Cl, DeBow, J., May 24, 2018]). It is well-settled that defendant is not required "to ferret out or assemble information that section 11 (b) obligates the claimant to allege" (Lepkowski v State of New York, 1 NY3d at 208 [citation omitted]; see also Jones v State of New York, UID No. 2018-038-548 [Ct Cl, DeBow, J., May 24, 2018] [dismissing the claim where the claimant failed to state factual assertions that supported the allegations of negligence]). Accordingly, the Court finds that the claim fails to comply with Court of Claims Act § 11 (b), and must be dismissed.
Although the Court finds that the claim must be dismissed for its failure to comply with Court of Claims Act § 11 (b), the Court also finds that defendant is entitled to summary judgment dismissing the claim. "When the State acts in a proprietary capacity as a landlord, it is subject to the same principles of tort law as a private landlord" (Miller v State of New York, 62 NY2d 506 [1984]). It is well established under the common law that the State has the duty to maintain its facilities in a reasonably safe condition, including its correctional facilities (Preston v State of New York, 59 NY2d 997 [1983]; see Heliodore v State of New York, 305 AD2d 708 [3d Dept. 2003]; Bowers v State of New York, 241 AD2d 760 [3d Dept. 1997]). "Having assumed physical custody of inmates, who cannot defend and protect themselves in the same way as those at liberty can, the State owes a duty of care to safeguard inmates" (Sanchez v State of New York, 99 NY2d 247 [2002]). However, the State is not an insurer to those who enter upon its premises and negligence cannot be inferred from the happening of an accident (see McMullen v State of New York, 199 AD2d 603 [3d Dept. 1993]; Tripoli v State of New York, 72 AD2d 823 [3d Dept. 1979]). The State's duty to protect inmates is limited to the risks of harm that are reasonably foreseeable (Sanchez v State of New York, 99 NY2d 247 [2002]).
Here, claimant's deposition testimony was submitted as an exhibit to defendant's motion for summary judgment. During his deposition, claimant testified that prior to the date of the incident, he had been to the Main Yard weight area at Franklin approximately 50 to 60 times (Kemp Aff. Exhibit G, p. 15). Claimant stated that the benches in the weight area needed maintenance, and that many benches were rusted and unstable (id., pp. 22-23). However, claimant never complained to correction staff or made a grievance regarding the condition of the benches (id., pp. 23-24). On the date of the accident, claimant attempted to use the decline bench to perform "flies" using two fifty-pound dumbbells (id., p. 22). In order to perform flies, claimant laid on the bench in a position so that he was declined at a 45-degree angle (id., p. 26). He was holding the dumbbells with his arms outstretched, parallel to his body (id.). When he started to raise the dumbbells, he went to adjust himself for stability and felt the bench rock (id., p. 34). As claimant felt the bench rock, he dropped the dumbbell in his left hand as his body began to slide to the right (id., p. 35). As he dropped the dumbbell in his right hand, his hand became pinned between a weight on the ground and the dumbbell he was previously holding in his right hand, causing his injuries (id.).
Claimant later filed a grievance regarding the accident (Kemp Aff. Exhibit G, p. 38). In the grievance, claimant stated that the decline bench that he was using lacked leg and foot grips (id.). When claimant was questioned regarding the grievance, he stated that "[o]n most decline benches, not all decline benches in the facility, they have what they call leg stir-rups [sic] that basically lock you in to stabilize your body on the bench. It helps you lock your body in so your body doesn't wobble" (id., pp. 41-42). He went on to state that "[u]sually, it's four apparatuses that stick out. Usually they have pads on them. Two of them go behind your knee and the other go in front of your ankle to support you . . ." (id., p. 42). Claimant stated that the benches located in the indoor weight area at Franklin have leg and foot grips (id.).
Defendant also submitted the deposition testimony of Jeffrey M. Brown, who was a Maintenance Supervisor 3 at Franklin on the date of claimant's accident (Kemp Aff. Exhibit H). Mr. Brown testified that when a complaint is made regarding a piece of workout equipment, it is done through a work order (Kemp Aff. Exhibit H, p. 42). If an inmate complained about the condition of a piece of workout equipment to a correction officer, the correction officer would either submit a work order or notify a recreational program leader, who at the time were Bob Ouimet, Ryan Perry and Scott Traynor (id., pp. 46, 68, 86, 89). He further stated that a work order regarding a piece of workout equipment would go to him (id., p. 44). Mr. Brown testified that he delegated the task of searching for relevant work orders to Ms. Kilmer (id., p. 49). The search revealed two work orders that related to weight benches, generally (id., p. 50). Neither related specifically to the decline bench involved in claimant's accident (id.).
Defendant also submitted the affidavits of Scott Traynor and Ryan Perry. Both Mr. Traynor and Mr. Perry were employed at Franklin as Recreation Program Leaders 1 on the date that claimant was injured (Traynor Aff. ¶ 1; Perry Aff. ¶ 1). Mr. Traynor's job duties included conducting daily inspections of the recreation areas and the various pieces of exercise equipment, including the weights and benches (Traynor Aff. ¶ 2). Mr. Perry's job duties included supervising inmates in the recreation area and ensuring that the recreation area was safe (Perry Aff. ¶ 2). Mr. Traynor memorialized his daily inspections of the weight area in the Main Yard in a safety logbook (Traynor Aff. ¶ 11). A true and accurate copy of the safety logbook was attached to Mr. Traynor's affidavit as Exhibit A. In the two weeks leading up to the date of claimant's accident, Mr. Traynor noted that the safety logbook showed no observed safety issues in the Main Yard weight area (Traynor Aff. ¶ 20). Both Mr. Traynor and Mr. Perry aver that they were unaware of any defects with the weight bench used by claimant (Traynor Aff. ¶ 21; Perry Aff. ¶ 8).
Lastly, defendant submitted the deposition testimony of Robert Ouimet, who worked as a Recreation Program Leader for the Department of Corrections and Community Supervision for 31 years prior to his retirement (Kemp Aff. Exhibit J). He holds a bachelor's degree in physical education and holds a coaching certification with the New York State Teachers Education Department (Kemp Aff. Exhibit J, p. 16). Mr. Ouimet testified that the bench used by claimant on the date that he was injured was a combination decline/flat bench (id., p. 39). Whether or not the bench was used as a flat bench or a decline bench depended on what equipment was being used (id.). He later stated that, because the bench used by claimant did not have leg supports on it, it was to be used only as a flat bench (id., p. 70). Mr. Oiumet explained further that leg supports provide stability for the person using the bench, as a person using the bench as a decline bench would not be able to keep themselves stable without leg supports (id., p. 71). The bench could be inclined or declined to accommodate people of varying heights (id., p. 138). Mr. Ouimet clarified that the use of the bench as a flat bench or a decline bench depended on the exercise being performed (id., p. 140). He stated that he did not observe any stability problem with the bench when he inspected the bench after claimant's accident (id., pp. 144-145).
In considering the evidence set forth by defendant, the Court finds that defendant is entitled to summary judgment on the claim. Initially, the Court notes that there is nothing in the evidence presented to suggest that the weight bench used by claimant was defective in any way. However, even if the weight bench were defective, the evidence submitted by defendant establishes that defendant did not create a dangerous condition nor did it have actual or constructive notice of a dangerous condition. First, Mr. Ouimet's testimony establishes that claimant misused the weight bench in question on the date of his injury, as the bench is only to be used as a decline bench if the person using the bench is able to utilize leg supports (see Hankins v State of New York, UID No. 2008-040-028 [Ct Cl, McCarthy, J., May 13, 2008] [dismissing claim where the claimant misused a squat rack as a chin-up bar]). Even if the bench used by claimant were defective in some way, Mr. Brown, Mr. Traynor, Mr. Perry and Mr. Ouimet were unaware of any such defect. The affidavit of Mr. Traynor and the safety logbook attached to his affidavit established that the Main Yard weight area was inspected in the days leading up to claimant's injury and no defects in the weight benches were observed (Traynor Aff. ¶ 21; Traynor Aff. Ex. A). Thus, defendant has established that it did not create the dangerous condition, nor did it have actual or constructive notice of a dangerous condition in regard to the weight bench (Abrams v Powerhouse Gym Merrick, Inc., 284 AD2d 487, 487-488 [2d Dept. 2001]; Ebuzoeme v City Univ. of New York, 10 Misc 3d 1079[A], 2005 NY Slip Op 52256[U] [Ct Cl 2005]). Although there was some discussion during Mr. Brown's deposition that generally, some weight benches needed repairs (Kemp Aff. Exhibit H, p. 50), the work orders did not indicate that the weight benches were defective or unsafe (id.). A "general awareness" of a dangerous condition "is legally insufficient to constitute notice of a particular condition that caused" the event giving rise to claimant's injuries (Piacquadio v Recine Realty Corp., 84 NY2d 967, 969 [1994] [internal quotation marks and citation omitted]). Mr. Brown also testified that a work bench would be disposed of if it were deemed unsafe (Kemp Aff. Exhibit H, p. 43).
Based upon the foregoing, the Court finds that defendant has sufficiently met its burden of making a prima facie showing of its entitlement to judgment as a matter of law as to claimant's failure to sufficiently plead the claim pursuant to Court of Claims Act § 11 (b) and the merits of the underlying action. Thus, the Court grants defendant's motion for summary judgment (M-92087); denies claimant's cross-motion for summary judgment as untimely (CM-92503); and dismisses the claim (No. 125258).
November 26, 2018
Albany, New York
JUDITH A. HARD
Judge of the Court of Claims Papers Considered: 1. Notice of Motion, dated April 6, 2018; and Attorney Affirmation, affirmed by Douglas R. Kemp, AAG on April 6, 2018, with Exhibits A through O annexed thereto. 2. Affidavit of Scott Traynor, sworn to on March 30, 2018, with Exhibit A annexed thereto. 3. Affidavit of Ryan Perry, sworn to on March 30, 2018. 4. Letter from Douglas R. Kemp, AAG, dated July 9, 2018. 5. Letter from Robert J. Genis, Esq., dated July 20, 2018. 6. Letter from Douglas R. Kemp, AAG, dated July 25, 2018.