Opinion
# 2015-041-030 Claim No. 122019 Motion No. M-86202
04-13-2015
VENICE NESMITH v. THE STATE OF NEW YORK
VENICE NESMITH Pro Se HON. ERIC T. SCHNEIDERMAN New York State Attorney General By: Michael C. Rizzo, Esq. Assistant Attorney General
Synopsis
Claimant's motion for summary judgment is denied in claim alleging assault by correction officers where claimant fails to satisfy initial burden of showing prima facie entitlement to summary judgment, and, even assuming claimant had met burden, triable issues of fact exist.
Case information
| UID: | 2015-041-030 |
| Claimant(s): | VENICE NESMITH |
| Claimant short name: | NESMITH |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 122019 |
| Motion number(s): | M-86202 |
| Cross-motion number(s): | |
| Judge: | FRANK P. MILANO |
| Claimant's attorney: | VENICE NESMITH Pro Se |
| Defendant's attorney: | HON. ERIC T. SCHNEIDERMAN New York State Attorney General By: Michael C. Rizzo, Esq. Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | April 13, 2015 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant, an inmate at Clinton Correctional Facility (Clinton) at the time the claim arose, moves pursuant to CPLR 3212 for summary judgment. Defendant opposes the motion.
The claim alleges that on October 9, 2011, and again on February 24, 2012, claimant was assaulted and/or subjected to the use of excessive force by correction officers at Clinton resulting in personal injuries and damages. Defendant's answer denies the allegations of the claim and asserts as a defense, among other defenses, that the culpable conduct of claimant caused or contributed to claimant's damages.
"A motion for summary judgment should be entertained only after the moving party has established, by competent admissible evidence, that it is entitled to judgment as a matter of law. If the movant meets this initial burden, the opposing party is required to submit evidence which raises a material issue of fact to preclude an award of summary judgment" (Ware v Baxter Health Care Corp., 25 AD3d 863, 864 [3d Dept 2006]; Svoboda v Our Lady of Lourdes Mem. Hosp., 31 AD3d 877 [3d Dept 2006]).
Summary judgment is "a drastic remedy" (Lebanon Val. Landscaping v Town of Moriah, 258 AD2d 732, 733 [3d Dept 1999]). It "is the procedural equivalent of a trial and should be granted only when it has been established that there is no triable issue of material fact" (Harris v State of New York, 187 Misc 2d 512, 517 [Ct Cl 2001]; see Paulin v Needham, 28 AD3d 531 [2d Dept 2006]).
The Court "must view the evidence in the light most favorable to the party opposing the motion, giving that party the benefit of every reasonable inference and ascertaining whether there exists any triable issue of fact" (Boston v Dunham, 274 AD2d 708, 709 [3d Dept 2000]).
The Court's role on a motion for summary judgment is issue finding, not issue determination (Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957]; Matter of Hannah UU; 300 AD2d 942, 943 [3d Dept 2002]; Schaufler v Mengel, Metzger, Barr & Co., 296 AD2d 742, 743 [3d Dept 2002]) and where a genuine issue of fact exists, the motion must be denied (Fleet Bank v Tiger Racquet Fitness and Exercise Ctr., 255 AD2d 793, 794 [3d Dept 1998]).
The Court finds that claimant has failed to satisfy his initial burden of proof on the motion with respect to his assault/excessive force cause of action. The only proof in admissible form offered by claimant, other than a copy of the claim itself, is claimant's affidavit.
Claimant's affidavit states, in conclusory fashion, that "there is no defense to the cause of action set forth in the claim and the defenses alleged by defendant have absolutely no merit." Clearly, "[s]uch a vague and conclusory statement is entirely insufficient to satisfy [claimant's] initial burden on [his] motion for summary judgment" (Murphy v County of Westchester, 228 AD2d 970, 971 [3d Dept 1996]).
Even assuming that claimant had satisfied his initial burden, the summary judgment motion must be denied because the affidavit of defendant's attorney, along with the attached exhibits, including a contemporaneous inmate misbehavior report involving claimant, contemporaneous Clinton Log Books and contemporaneous medical records of claimant, shows, at a minimum, the existence of triable issues of fact as to whether any assault or use of force took place, as alleged by claimant.
Viewing the evidence presented on the claimant's summary judgment motion most favorably to the party opposing the motion, as required in assessing a request for summary judgment, the Court finds that the evidence offered by defendant raises issues of fact requiring a trial.
The claimant's motion for summary judgment is denied.
April 13, 2015
Albany, New York
FRANK P. MILANO
Judge of the Court of Claims
Papers Considered:
1. Claimant's Notice of Motion for Summary Judgment, filed January 13, 2015;
2. Affidavit of Venice Nesmith, sworn to January 8, 2015, and annexed exhibits;
3. Affidavit in Opposition of Michael C. Rizzo, sworn to January 28, 2015, and annexed exhibits.