Opinion
# 2018-045-032 Claim No. 127419 Motion No. M-92079
10-17-2018
KASHIEM HARPER v. THE STATE OF NEW YORK
Kashiem Harper, Pro Se Hon. Barbara D. Underwood, Attorney General By: Heather R. Rubinstein, Assistant Attorney General
Synopsis
Claimant's motion to strike affirmative defenses and summary judgment, claimant slipped and fell on water in the correctional facility.
Case information
| UID: | 2018-045-032 |
| Claimant(s): | KASHIEM HARPER |
| Claimant short name: | HARPER |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 127419 |
| Motion number(s): | M-92079 |
| Cross-motion number(s): | |
| Judge: | GINA M. LOPEZ-SUMMA |
| Claimant's attorney: | Kashiem Harper, Pro Se |
| Defendant's attorney: | Hon. Barbara D. Underwood, Attorney General By: Heather R. Rubinstein, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | October 17, 2018 |
| City: | Hauppauge |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
The following papers were read and considered by the Court on this motion: Claimant's Notice of Motion; Claimant's Affidavit in Support; Claimant's Memorandum of Law with annexed Exhibits A-C; and Defendant's Affirmation in Opposition.
Claimant, Kashiem Harper, has brought this motion pursuant to CPLR 3212 seeking an order striking the affirmative defenses and granting summary judgment in his favor. Defendant, the State of New York, opposes the motion.
The underlying action occurred on July 19, 2015 at approximately 7:30 a.m. in the pot room of Fishkill Correctional Facility's Main Building. At that time claimant reported for work in the Main Building Messhall. Claimant was directed to the pot room where pots are washed before they are transported to the kitchen in building 21A. Claimant then slipped and fell on pooled water on the floor of the pot room. Claimant alleges that defendant, through its employees, knew of the unsafe condition of the floor for months prior to his accident. Claimant continues that there were no warning signs for the defective condition of the floor displayed at the facility. Claimant also states that he was never provided with protective boots by defendant prior to his entering the pot room.
Claimant seeks to have the affirmative defenses raised in the verified answer dismissed. A motion to dismiss affirmative defenses must be made on the grounds that the defenses are not stated or that they are without merit (CPLR 3211 [b]). The moving party bears the burden of coming forward with sufficient proof to demonstrate that the defense cannot be maintained (Arquette v State of New York, 190 Misc 2d 676 [Ct Cl 2001]). It is an error for a court to strike a defense if material issues of fact remain unresolved (Matter of Harrison v State of New York, 262 AD2d 833 [3d Dept 1999]) and in fact if there is doubt as to the availability of a defense, it should not be dismissed (Becker v Elm A.C. Corp., 143 AD2d 965 [2d Dept 1988]).
"In reviewing a motion to dismiss an affirmative defense, the court must liberally construe the pleadings in favor of the party asserting the defense and give that party the benefit of every reasonable inference" (Fireman's Fund Ins. Co. v Farrell, 57 AD3d 721, 723 [2d Dept 2008]).
In regard to defendant's first affirmative defense which states that the claim fails to state a cause of action, it is harmless surplusage and a motion to strike it must be denied as unnecessary (Butler v Catinella, 58 AD3d 145 [2d Dept 2008]).
In regard to defendant's second, third and tenth affirmative defenses, claimant has established that they are without merit.
Claimant has failed to establish, at this juncture, that defendant's fourth, fifth, sixth, seventh, eighth or ninth affirmative defenses are without merit.
Turning to claimant's motion for summary judgment, the party seeking summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, by offering sufficient evidence to eliminate any material issues of fact from the case (Cox v Kingsboro Med. Group, 88 NY2d 904 [1996]; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]; Zuckerman v City of New York, 49 NY2d 557 [1980]). Failure to make a prima facie showing requires denial of summary judgment, regardless of the sufficiency of the opposing papers (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). Once the proponent of a summary judgment motion establishes a prima facie showing then the burden shifts to the opposing party to produce evidentiary proof in admissible form sufficient to demonstrate the existence of material issues of fact which require a trial of the action (Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). In determining a summary judgment motion, the Court must view the evidence in the light most favorable to the non-moving party (Gradwohl v Stop & Shop Supermarket Co., LLC, 70 AD3d 634 [2d Dept 2010]).
Defendant has a duty to act as a reasonable person would in maintaining its premises in a reasonably safe condition (Basso v Miller, 40 NY2d 233 [1976]; Preston v State of New York, 59 NY2d 997 [1983]). However, the State "is not an insurer against every injury that might occur on its property" (Covington v State of New York, 54 AD3d 1137, 1137-1138 [3d Dept 2008]). It is not obligated to warn against conditions on its property that could be readily observed by the use of one's senses (Cupo v Karfunkel, 1 AD3d 48 [2d Dept 2003]).
Claimant must establish that defendant created or had actual or constructive notice of the dangerous condition and that it failed to take appropriate remedial action (Gordon v American Museum of Natural History, 67 NY2d 836,837 [1986]). "To constitute constructive notice, the defect must be visible and apparent and it must exist for a sufficient length of time before the accident to permit the defendant an opportunity to discover and remedy it" (Lee v Bethel First Pentecostal Church of Am., 304 AD2d 798 [2d Dept 2003]). When an alleged dangerous condition is at issue, a claimant must show that the State had actual or constructive notice of the condition and failed to act reasonably to remedy the dangerous condition (Timcoe v State of New York, 267 AD2d 375 [2d Dept 1999]).
Claimant has failed to establish through competent admissible evidence his prima facie burden of demonstrating his entitlement to summary judgment as a matter of law.
Therefore, for the foregoing reasons, claimant's motion is granted to the extent that defendant's second, third and tenth affirmative defenses are stricken from defendant's answer. Claimant's motion is denied in all other respects.
October 17, 2018
Hauppauge, New York
GINA M. LOPEZ-SUMMA
Judge of the Court of Claims