Opinion
# 2019-050-003 Claim No. 122885 Motion No. M-93006 Cross-Motion No. CM-93176
01-18-2019
PAUL KAIRIS v. THE STATE OF NEW YORK
Paul Kairis, Pro Se Hon. Letitia James, Attorney General By: Carlton K. Brownell, Assistant Attorney General
Synopsis
Defendant's cross motion is granted and the claim is dismissed. Defendant demonstrated that the allegedly contaminated food was not exclusively in the State's control and thus demonstrated as a matter of law that it is entitled to judgment because claimant cannot identify the source of the alleged dime in his food.
Case information
| UID: | 2019-050-003 |
| Claimant(s): | PAUL KAIRIS |
| Claimant short name: | KAIRIS |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 122885 |
| Motion number(s): | M-93006 |
| Cross-motion number(s): | CM-93176 |
| Judge: | STEPHEN J. LYNCH |
| Claimant's attorney: | Paul Kairis, Pro Se |
| Defendant's attorney: | Hon. Letitia James, Attorney General By: Carlton K. Brownell, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | January 18, 2019 |
| City: | Hauppauge |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant, an inmate appearing pro se, moves for summary judgment. Defendant cross-moves for summary judgment.
The claim herein alleges that on June 4, 2013 while eating at the Wende Correctional Facility mess hall claimant bit down on a coin that was in his forkful of mashed potatoes and ground beef and his tooth was damaged. He asserts a claim for strict product liability regarding the food he was served as well as a negligence cause of action under a theory of res ipsa loquitur.
A motion for summary judgment places the burden on the moving party to come forward with proof in admissible form to make out a prima facie case, showing its entitlement to judgment as a matter of law (Zuckerman v City of New York, 49 NY2d 557 [1980]). When considering a motion for summary judgment, the initial test is whether the movant established prima facie entitlement to judgment as a matter of law (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]). "Once this showing has been made . . . 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" (Sonne v Bd. of Trustees of Vil. of Suffern, 67 AD3d 192 [2d Dept 2009], internal quotation and citation omitted). The evidence submitted in support of a motion for summary judgment must be viewed in the light most favorable to the non-moving party, giving that party the benefit of any favorable inference (Ruzycki v Baker, 301 AD2d 48 [4th Dept 2002]; Boston v Dunham, 274 AD2d 708 [3d Dept 2000]).
Initially, claimant's product liability cause of action is not viable because food served at correctional facilities is not purchased by inmates and "the implied warranty that it is fit for human consumption and contains no foreign or injury of substances does not apply" (McMoore v State of New York, UID No, 2000-028-0007 [Ct Cl, Sise, J., Oct. 2, 2000]; see 86 NY Jur 2d, Products Liability, § 127).
In order to prevail on the remaining negligence cause of action claimant must demonstrate by direct and/or circumstantial evidence that the State failed to use due care in the preparation of the allegedly contaminated meal (see Henderson v State of New York, UID 2012-028-003a [Ct Cl, Sise, J., Dec. 19, 2012]; Rubino v State of New York, UID No. 2016-032-510 [Ct Cl, Hard, J., Oct. 25, 2016]). Claimant has not offered any direct evidence that defendant's food preparation lacked the requisite due care. Instead, he relies on the theory of res ispa loquitor to establish by circumstantial evidence that, because he allegedly bit down on a dime that was in his food, the State as the provider of that food must have been negligent in its preparation.
The theory of res ipsa loquitur "permits an inference of negligence to be drawn solely from the happening of an accident" (Nikollbibaj v City of New York, 106 AD3d 789 [2d Dept 2013], citation omitted). "[O]nly in the rarest of res ipsa loquitur cases may a plaintiff win summary judgment" (Morejon v Rais Const. Co., 7 NY3d 203 [2006]). "That would happen only when the plaintiff's circumstantial proof is so convincing and the defendant's response so weak that the inference of defendant's negligence is inescapable" (Hoeberlein v Bed Bath & Beyond, Inc., 124 AD3d 722 [2d Dept 2015]). The doctrine requires claimant to establish the following:
(1) the event must be of a kind which ordinarily does not occur in the absence of someone's negligence; (2) it must be caused by an agency or instrumentality within the exclusive control of the defendant; (3) it must not have been due to any voluntary action or contribution on the part of the plaintiff (Morejon v Rais Const. Co., 7 NY3d 203 [2006]).
Here, defendant has provided the affidavit of Donald Beecroft, who works as a Food Administrator II at Wende Correctional Facility. Mr. Beecroft attests that the ground beef patties and mashed potatoes that are served at the facility are supplied by a company called Sysco. The patties are premade, come in cases of 80 and are simply baked in an oven prior to being served to the inmates. Similarly, the mashed potatoes come in powdered form and are merely mixed with water, heated and then served. In other words, the mashed potato and beef patty meal served to claimant was not within the defendant's exclusive control because it was initially prepared and packaged by Sysco. Therefore claimant has not met his initial burden because he has not established as a matter of law that defendant is liable in negligence for the alleged presence of a dime in his meal.
Moreover, defendant has demonstrated that the allegedly contaminated food was not exclusively in the State's control and has thus demonstrated as a matter of law that it is entitled to judgment because claimant cannot identify the source of the alleged dime in his food (see Turchetti v State of New York, UID No. 2002-018-141, [Ct Cl, Fitzpatrick, J., May 21, 2002]; Henderson v State of New York, UID No. 2012-028-003a [Ct Cl, Sise, J., Dec. 19, 2012]; Robinson v State of New York, UID No. 2016-040-103 [Ct Cl, McCarthy, J., Nov. 28, 2016]).
For the foregoing reasons, claimant's motion for summary judgment is denied and defendant's cross motion for summary judgment dismissing the claim is granted.
January 18, 2019
Hauppauge, New York
STEPHEN J. LYNCH
Judge of the Court of Claims The following papers were read and considered by the Court on claimant's motion and defendant's cross motion: 1. Notice of Motion, Affidavit in Support 2. Notice of Cross Motion, Affidavit in Support 3. Reply to Cross Motion