Opinion
# 2019-040-007 Claim No. 129253 Motion No. M-92818 Cross-Motion No. CM-92899
01-24-2019
ANDRE DOLBERRY v. THE STATE OF NEW YORK
Andre Dolberry, Pro Se LETITIA JAMES Attorney General of the State of New York By: Christina M. Calabrese, Esq., AAG
Synopsis
Pro se Claimant's second Motion for Summary Judgment denied. State's Cross-Motion for Sanctions also denied.
Case information
| UID: | 2019-040-007 |
| Claimant(s): | ANDRE DOLBERRY |
| Claimant short name: | DOLBERRY |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 129253 |
| Motion number(s): | M-92818 |
| Cross-motion number(s): | CM-92899 |
| Judge: | CHRISTOPHER J. McCARTHY |
| Claimant's attorney: | Andre Dolberry, Pro Se |
|---|---|
| Defendant's attorney: | LETITIA JAMES Attorney General of the State of New York By: Christina M. Calabrese, Esq., AAG |
| Third-party defendant's attorney: | |
| Signature date: | January 24, 2019 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
For the reasons set forth below, Claimant's second Motion for summary judgment in his favor, pursuant to CPLR 3212, is denied. Defendant's Cross-Motion sanctioning Claimant for repeatedly filing frivolous motions is also denied.
This pro se Claim, which was filed in the office of the Clerk of the Court on February 1, 2017, alleges that, on or about August 18, 2016, while incarcerated at Franklin Correctional Facility, Claimant was assaulted by four inmates as a result of the State's failure to properly supervise them. The Claim also asserts that Claimant lost some of his personal property when, after the assault, he was transferred to the Special Housing Unit.
Claimant, for the second time, moves for summary judgment. Summary judgment is a drastic remedy to be granted sparingly and only where no material issue of fact is demonstrated in the papers related to the motion (see Crowley's Milk Co. v Klein, 24 AD2d 920 [3d Dept 1965]; Wanger v Zeh, 45 Misc 2d 93 [Sup Ct, Albany County 1965], affd 26 AD2d 729 [3d Dept 1966]). CPLR 3212(b) requires that a motion for summary judgment be supported by a copy of the pleadings (Capelin Assoc. v Globe Mfg. Corp., 34 NY2d 338 [1974]). In support of his Motion, Claimant, again, did not submit a copy of the Claim or Answer. The failure to include all the pleadings in support of a motion for summary judgment requires that the motion be denied, regardless of the merits of the motion (Davis v State of New York, 151 AD3d 1411 [3d Dept 2017]; Senor v State of New York, 23 AD3d 851 [3d Dept 2005]; Bonded Concrete, Inc. v Town of Saugerties, 3 AD3d 729 [3d Dept 2004], lv dismissed 2 NY3d 793 [2004]; Deer Park Assocs. v Robbins Store, 243 AD2d 443 [2d Dept 1997]; CPLR 3212[b]).
CPLR 3212(b) also requires that the motion be supported by "available proof." "The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case" (Winegrad v New York Univ. Med. Center, 64 NY2d 851, 853 [1985]; see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957]). "Failure to make such a prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers" (Alvarez v Prospect Hosp., supra at 324; see Winegrad v New York Univ. Med. Center, supra at 853).
As the Court stated above, this is Claimant's second motion for summary judgment. The Appellate Division, Third Department stated in Keating v Town of Burke (105 AD3d 1127[2013]):
" '[M]ultiple summary judgment motions in the same action should be discouraged in the absence of a showing of newly discovered evidence or other sufficient cause' " (Matter of Bronsky-Graff Orthodontics, P.C., 37 AD3d 946, 947 [3d Dept 2007], quoting La Freniere v Capital Dist. Transp. Auth., 105 AD2d 517, 518 [3d Dept 1984]; accord Town of Santa Clara v Yanchitis, 90 AD3d 1297, 1298 [3d Dept 2011]).
Here, in Claimant's second motion for summary judgment, he again relies solely upon his own affidavit to support his motion. Claimant has neither made a showing that the information in his unsworn "affidavits" was newly discovered after his first motion, nor has he offered any other cause for not submitting the information in his prior motion. The evidence that was not submitted in support of the prior motion for summary judgment must be used to establish facts that were not available to the moving party at the time of the first motion and which could not have been established through alternative evidentiary means (Vinar v Litman, 110 AD3d 867, 868-869 [2d Dept 2013]; see Pavlovich v Zimmet, 50 AD3d 1364, 1365 [3d Dept 2008]). In fact, it has been held that "successive motions for summary judgment should not be made based upon facts or arguments which could have been submitted on the original motion for summary judgment" (Capuano v Platzner Intl. Group, 5 AD3d 620, 621 [2d Dept 2004]). Claimant has made no showing that the information submitted in connection with this motion could not have been submitted in connection with his original motion.
However, assuming, arguendo, that the Motion was properly made, it would still be denied as the Court further finds that Claimant failed to make the required prima facie showing of entitlement to judgment as a matter of law.
"Having assumed physical custody of inmates, who cannot protect and defend themselves in the same way as those at liberty can, the State owes a duty of care to safeguard inmates, even from attacks by fellow inmates" (Sanchez v State of New York, 99 NY2d 247, 252 [2002]; see Flaherty v State of New York, 296 NY 342, 346 [1947]; Di Donato v State of New York, 25 AD3d 944 [3d Dept 2006]). As in any other negligence action, "the scope of the duty owed by the defendant is defined by the risk of harm reasonably to be perceived" (Sanchez v State of New York, supra at 252; see Basso v Miller, 40 NY2d 233, 241 [1976]; Smith v County of Albany, 12 AD3d 912, 913 [3d Dept 2004]). Even though the "precise manner in which the harm occurred" may not have been foreseeable, liability attaches if it was "within the class of reasonably foreseeable hazards" to which the duty applies (Sanchez v State of New York, supra at 252; Rodriguez v City of New York, 38 AD3d 349, 352 [1st Dept 2007]). Moreover, it applies to those risks that were foreseeable, "not simply by actual notice but by actual or constructive notice - by what the 'State knew or had reason to know' " (Sanchez v State of New York, supra at 255, quoting dissenting op at 260 [emphasis in original]). In the instant Claim, it encompasses those risks that Defendant reasonably should have foreseen in the context of its operation of a prison and having custody of inmates forcibly surrounded by felons - many of them with a proven capacity for violence (Sanchez v State of New York, supra at 256).
At the same time, Defendant's duty to prisoners does not "mandate unremitting surveillance in all circumstances, and does not render the State an insurer of inmate safety. When persons with dangerous criminal propensities are held in close quarters, inevitably there will be some risk of unpreventable assault, a risk the State cannot possibly eradicate. The mere occurrence of an inmate assault, without credible evidence that the assault was reasonably foreseeable, cannot establish the negligence of the State" (Sanchez v State of New York, supra at 256; Elnandes v State of New York, 11 AD3d 828 [3d Dept 2004]).
The State has been found negligent in inmate-on-inmate assault claims where a claimant was able to establish that the attack was foreseeable because: (1) Defendant knew, or should have known, that the claimant was at risk of assault, yet failed to provide reasonable protection; (2) Defendant knew, or should have known, that the assailant was prone to perpetrate an attack, yet failed to take proper precautionary measures; or (3) Defendant failed to intervene or act when it knew, or should have known, that surrounding conditions were likely to engender or facilitate an attack (Smart v State of New York, UID No. 2007-029-053 [Ct Cl, Mignano, J., Dec. 21, 2007], affd 65 AD3d 1218 [2d Dept 2009]; Douglas v State of New York, UID No. 2007-028-012 [Ct Cl, Sise, P.J., May 17, 2007]; Shearin v State of New York, UID No. 2007-028-011 [Ct Cl, Sise, P.J., May 8, 2007]). Claimant has failed to submit any evidence as to any of the above factors. In addition, Claimant failed to submit any evidence regarding the lost property cause of action.
Therefore, based upon the foregoing, Claimant's Motion for summary judgment is denied.
The Court will now address Defendant's Cross-Motion for sanctions. Defendant asserts that, since this Claim was filed, Claimant has filed numerous motions seeking similar, if not identical, relief (Affirmation of Christina M. Calabrese, Esq., Assistant Attorney General [hereinafter, "Calabrese Affirmation"], ¶ 6).
By the Court's count, this is Claimant's fifteenth Motion regarding this Claim.
In seeking sanctions against Claimant, Defendant relies upon 22 NYCRR § 130-1.1, which states in pertinent part:
(a) The court, in its discretion, may award to any party or attorney in any civil action or proceeding before the court, except where prohibited by law, costs in the form of reimbursement for actual expenses reasonably incurred and reasonable attorney's fees, resulting from frivolous conduct as defined in this Part. In addition to or in lieu of awarding costs, the court, in its discretion may impose financial sanctions upon any party or attorney in a civil action or proceeding who engages in frivolous conduct as defined in this Part, which shall be payable as provided in section 130-1.3 of this Part…***
(c) For purposes of this Part, conduct is frivolous if:
(1) it is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law;
(2) it is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another; or
(3) it asserts material factual statements that are false.
Looking at Claimant's behavior as a whole, and bearing in mind that the "intent of [Part 130-1] is to prevent the waste of judicial resources and to deter vexatious litigation and dilatory or malicious litigation tactics" (Matter of Kernisan v Taylor, 171 AD2d 869, 870 [2d Dept 1991]), the impetus to impose sanctions on Claimant is present. Nevertheless, giving Claimant the benefit of the doubt and because Claimant was only recently warned by this Court regarding following the CPLR when making discovery demands (Dolberry v State of New York, UID No. 2017-040-138 [Ct Cl, McCarthy, J., Oct. 31, 2017]), the Court declines to impose sanctions at this time. Claimant is strongly warned, however, that continued conduct such as making successive motions for the same relief, motions for relief that Claimant has already been advised is not available, or any type of motion in which the Court finds the conduct frivolous under 22 NYCRR 130, will subject Claimant to an appropriate penalty (see Johnson v State of New York, UID No. 2018-051-503 [Ct Cl, Martin J., Nov. 30, 2018]; Pettus v State of New York, UID No. 2009-044-188 [Ct Cl, Collins, J., Jul. 16, 2009]; Pettus v State of New York, UID No. 2008-044-549 [Ct Cl, Schaewe, J., June 12, 2008]; Pettus v State of New York, UID No. 2008-015-019, [Ct Cl, Collins, J., Mar. 3, 2008]), which may include curtailing his ability to file future motions without prior judicial approval (see e.g., Lammers v Lammers, 235 AD2d 286 [1st Dept 1997]; Pettus v State of New York, UID No. 2009-032-112 [Ct Cl, Hard, J., Mar. 9, 2009]).
Defendant requested that the Court impose sanctions upon Claimant for making a frivolous motion as this was the third time Claimant sought relief without complying with the CPLR. The Court stated, "[w]hile Defendant is correct that this is the third time Claimant has made a motion to compel without making a separate, prior discovery demand upon the Attorney General, … the Court is not convinced that this motion was frivolous. However, if Claimant continues making such motions without complying with the CPLR requirements to serve a discovery demand upon the Defendant prior to making a motion to the Court to compel discovery, the Court may reach a different conclusion in the future."
Based upon the foregoing, the Court finds and concludes that Defendant has failed to establish that Claimant's conduct in prosecuting his Claim has been frivolous. Therefore, the Cross-Motion for sanctions is denied.
January 24, 2019
Albany, New York
CHRISTOPHER J. McCARTHY
Judge of the Court of Claims
The following papers were read and considered by the Court on Claimant's Motion seeking summary judgment and Defendant's Cross-Motion for sanctions: Papers Numbered Notice of Motion, Statements in Support & Exhibits Attached 1 Notice of Cross-Motion, & Affirmation in Support & Opposition 2 Claimant's Reply 3 Filed Papers: Claim, Answer