Opinion
# 2020-015-024 Claim No. 132766 Motion No. M-94611
02-19-2020
EVERTON GONZALEZ v. THE STATE OF NEW YORK
Sivin & Miller, LLP By: Andrew C. Weiss, Esq. Honorable Letitia James, Attorney General By: Albert DiGiacomo, Esq., Assistant Attorney General
Synopsis
Claimant's motion to consolidate was granted where his two claims alleging the use of excessive force by correction officers involved a common actor, retaliation was alleged as the impetus for the second use of force, and undue prejudice was not shown.
Case information
| UID: | 2020-015-024 |
| Claimant(s): | EVERTON GONZALEZ |
| Claimant short name: | GONZALEZ |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 132766 |
| Motion number(s): | M-94611 |
| Cross-motion number(s): | |
| Judge: | FRANCIS T. COLLINS |
| Claimant's attorney: | Sivin & Miller, LLP By: Andrew C. Weiss, Esq. |
| Defendant's attorney: | Honorable Letitia James, Attorney General By: Albert DiGiacomo, Esq., Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | February 19, 2020 |
| City: | Saratoga Springs |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant moves to consolidate Claim numbers 132766 and 133343 pursuant to CPLR 602 (a).
In claim number 132766, filed March 12, 2019, claimant alleges he was attacked by correction officers, including Correction Officer J. Bartlett, at Mid-State Correctional Facility on April 28, 2018. Claimant alleges further that Correction Officer Bartlett authored a false Misbehavior Report in an attempt to cover up his own malfeasance, which resulted in claimant's confinement to the Special Housing Unit (SHU) for three months. Claimant alleges the disciplinary charges were ultimately dismissed by the hearing officer upon determining there was insufficient evidence to support the charges. Claimant allegedly sustained a permanent hearing loss as a result of the beating and seeks damages for excessive force, wrongful confinement, malicious prosecution and abuse of process.
In claim number 133343, filed July 12, 2019, claimant alleges he was again attacked by correction officers, including Correction Officer J. Bartlett, at Mid-State Correctional Facility on April 20, 2019. Claimant alleges that the second assault was "undertaken, in part, in retribution and retaliation for claimant having filed a grievance, a Notice of Intention to Make a Claim and a Claim (currently pending in the Court of Claims under Claim No. 132766) alleging that DOCCS officials, including C.O. Bartlett, assaulted and battered claimant on April 28, 2018 and then authored a false misbehavior report against claimant" (claimant's Exhibit 5, ¶ 4). Claimant alleges he was the subject of a second knowingly false misbehavior report and that the disciplinary charges were ultimately reversed and dismissed on the merits by the Deputy Superintendent of Security. Claimant allegedly suffered personal injuries in the attack and seeks damages for excessive force, wrongful confinement, malicious prosecution and abuse of process. Claimant contends that both claims involve common questions of law and fact and consolidation would "economize legal and judicial effort" (Weiss affirmation dated Sept. 19, 2019, ¶ 7). He points out that the primary actor, Correction Officer Bartlett, was involved in both incidents and both incidents occurred at Mid-State Correctional Facility. Significantly, claimant contends the second assault was in retaliation for claimant's filing of a grievance, his service of a Notice of Intention, and the filing of claim no. 132766 on March 12, 2019, little more than one month before the second assault occurred. Defendant, on the other hand, opposes the motion on the ground that the two incidents are separate, occurred at different times, and involved different circumstances.
CPLR 602 (a) permits consolidation when actions involve "a common question of law or fact" and consolidation would avoid unnecessary costs or delay. " 'A motion to consolidate is directed to the sound discretion of the court, and the court is afforded wide latitude in the exercise thereof' " (Matter of Giangualano (Birnbaum), 114 AD3d 1233, 1234 [4th Dept 2014], quoting Flower City Interiors v Rochester Gen. Hosp., 184 AD2d 998, 999 [1992]). Where the actions share material questions of law or fact, the "interests of justice and judicial economy" are served by consolidation (Hanover Ins. Group v Mezansky, 105 AD3d 1000, 1000 [2d Dept 2013]). Absent a showing of prejudice by the party opposing the motion, a motion to consolidate should be granted (id.; Berman v Greenwood Vil. Community Dev., 156 AD2d 326 [2d Dept 1989]).
Although the two claims here involve separate assaults, at least one of the alleged assailants was involved in both incidents and there are common issues as to whether the filing of a grievance and the service of a notice of intention and claim after the first alleged assault provided the impetus for the occurrence of the second assault. It appears, therefore, that there will be overlapping proof on the issue of retaliation (see A.S. v The State of New York, Ct Cl, June 29, 2017, DeBow, J., claim No. 126919,127867, UID No. 2017-038-546). Accordingly, claimant sufficiently demonstrated the existence of common factual issues.
In opposition to the motion, defendant contends consolidation is inappropriate because the presentation of evidence relating to the separate incidents would tend to bolster each claim to the defendant's disadvantage. However, as the claimant points out, the risk of prejudice is less in the Court of Claims where cases are tried without a jury. More significantly, the case on which defendant primarily relies, Bradford v Coleman Catholic High School (110 AD2d 965 [3d Dept 1985]), involved different plaintiffs injured in two different football games governed by different rules. Thus, the Court found not only that the claims did not share an identity of issues, but also that the presentation of both claims to the same jury would tend to inappropriately bolster each claim. Here, by contrast, one claimant alleges the use of excessive force by a common actor (in addition to others) on two occasions and seeks to prove that the use of force was unnecessary based, in part, upon the evidence of a retaliatory motive. Considering the common thread which links the two claims, consolidation would serve the ends of justice and judicial economy.
Accordingly, claimant's motion to consolidate the two claims is granted, the caption shall remain the same, and the consolidated claim shall be designated 132766. The Chief Clerk of the Court is directed to transfer the contents of the file for claim number 133343 to the file for claim number 132766 and to close claim number 133343.
February 19, 2020
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims Papers Considered:
1. Notice of Motion dated September 19, 2019;
2. Affirmation in Support dated September 19, 2019, with Exhibits 1-6;
3. Affirmation in opposition dated December 3, 2019;
4. Reply Affirmation dated December 9, 2019.