Opinion
# 2013-038-518 Claim No. 121491 Motion No. M-82707
04-03-2013
PATRICK MORRISON v. THE STATE OF NEW YORK
Synopsis
Claimant's motion for summary judgment denied. The claim appears to sound in negligent infliction of emotional distress, and the emotional injuries sustained due to defendant's failure to provide clean clothes for nearly a month are not compensable damages.
Case information
UID: 2013-038-518 Claimant(s): PATRICK MORRISON Claimant short name: MORRISON Footnote (claimant name) : Defendant(s): THE STATE OF NEW YORK Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): 121491 Motion number(s): M-82707 Cross-motion number(s): Judge: W. BROOKS DeBOW Claimant's attorney: PATRICK MORRISON, Pro se ERIC T. SCHNEIDERMAN, Attorney General Defendant's attorney: of the State of New York By: Belinda A. Wagner, Assistant Attorney General Third-party defendant's attorney: Signature date: April 3, 2013 City: Albany Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
Claimant, an individual incarcerated in a State correctional facility, has filed this claim seeking compensation for pain and suffering allegedly caused by defendant's failure to provide him with a change of clothes from May 24, 2012 until June 20, 2012. Claimant moves pursuant to CPLR 3212 for summary judgment. Defendant opposes the motion on the grounds that claimant has failed to demonstrate that its pleaded defenses are without merit, that claimant has failed to demonstrate exhaustion of his administrative remedies, and that claimant's conclusory and self-serving allegations in support of the motion provide insufficient factual support for his motion. Claimant's motion will be denied, although not for the reasons urged by defendant.
"To obtain summary judgment, it is necessary that the movant establish his cause of action or defense 'sufficiently to warrant the court as a matter of law in directing judgment' in his favor" (Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1067 [1979], quoting CPLR 3212 [b]). To prevail on such a motion, the movant must provide facts in support of every element of his cause of action (see e.g. Chapman v Silber, 97 NY2d 9, 22 [2001]; Suriel v Dominican Republic Education and Mentoring Project, Inc., 85 AD3d 1464, 1466-1467 [3d Dept 2011]; Levy v Morgan, 31 AD3d 857, 858-859 [3d Dept 2006]). The instant claim asserts a cause of action sounding in negligence, the elements of which are "(1) the existence of a duty on defendant's part as to [claimant]; (2) a breach of this duty; and (3) injury to the [claimant] as a result thereof" (Akins v Glens Falls City School Dist., 53 NY2d 325, 333 [1981], citing Prosser, Torts [4th ed], § 30, p 143]).
In support of his motion, claimant has submitted sworn statements that demonstrate prima facie a duty owed to him by defendant, and a breach thereof. The statements demonstrate that claimant was incarcerated in a State correctional facility which gave rise to a duty upon defendant to provide him with clothes, and that defendant failed to provide him with a change of clothes for 27 days (see Morrison Motion for Summary Judgment, sworn to Nov. 27, [2012]; Exhibit A [Witness Statement of Brendon McPherson, sworn to July 5, 2012]; Exhibit F [Verified Claim]). Defendant has not presented any proof creating triable issues of fact as to whether it owed a duty to claimant or whether such a duty was breached. However, claimant's motion for summary judgment will not be granted because he has failed to support his motion with facts demonstrating a compensable injury that resulted from that breach of duty.
In particular, the verified claim asserts that claimant's written requests for clothes and entreaties to corrections employees were largely ignored, and that he was unable to launder the single set of clothes he wore for fear of violating institutional rules and mores regarding nudity (see id., Exhibit F, Fact 6). Claimant's sworn "motion" states that "[t]hey lefted [sic] me suffering with no clothes . . . Who or why should anyone wanna wear the same clothes for a month? . . . Just imagine what I went through" (id., p.3), and that claimant seeks damages for "pain and suffering for the violation of my rights" (id., p.4) and for "suffering without clothes for 27 day's [sic]" (id., p.6). Notably, the nature of the "pain" that claimant alleges to have suffered is not specified, and the instant motion is unsupported by facts regarding any physical injury, or of the type of emotional injury that is compensable at law.
In general, "negligently caused psychological trauma, with ensuing emotional harm alone" (Johnson v State of New York, 37 NY2d 378, 381 [1975]) is not a compensable injury (see id.). Such an injury may be cognizable "when the claim possesses 'some guarantee of genuineness' " (Ornstein v New York City Health & Hosps. Corp., 10 NY3d 1, 6 [2008] [citation omitted]). In the absence of proof of any physical harm suffered by claimant, the instant claim must be construed as one for negligent infliction of emotional distress, and such a cause of action has been recognized only in narrowly circumscribed circumstances (see e.g. Ornstein, 10 NY3d at 8-11 [exposure to HIV virus]; Martinez v Long Is. Jewish Hillside Med. Ctr., 70 NY2d 697 [1987] [mental anguish from unnecessarily terminating pregnancy based upon erroneous medical advice]; Johnson at 382 [negligent mishandling of a corpse or incorrect notification of the death of a close relative]; cf. Losquadro v Winthrop Univ. Hosp., 216 AD2d 533, 534 [2d Dept 1995] [cause of action for negligent infliction of emotional distress "must generally be premised upon conduct that unreasonably endangers the plaintiff's physical safety"]).
While the Court recognizes that this incarcerated claimant likely suffered significant upset and frustration as a result of being deprived of clean clothes for 27 days, the Court finds that the facts of this claim do not fit within any of the recognized situations in which only emotional injuries, without physical injury, are compensable. Notably, claims for negligent infliction of emotional distress arising from situations where inmates have been unable to attend the funeral of a loved one due to administrative negligence have been held to be not compensable (see Hughes v State of New York, UID No. 2012-049-053 [Ct Cl, Weinstein, J., Oct. 12, 2012] and cases cited therein), and the emotional distress suffered in that situation would be arguably far more substantial than the distress suffered by one who lacks clean clothes for nearly a month. Thus, because claimant has not supported his motion for summary judgment with proof that he suffered any degree of physical injury, he has not established his right to judgment as a matter of law at this stage of the litigation of this claim.
Inasmuch as this claim will go forward, the several arguments made by defendant in opposition to claimant's motion warrant brief discussion. Although claimant's motion papers review each of the various defenses asserted in the verified answer to the claim and argue that such defenses lack merit, claimant's motion is not one pursuant to CPLR 3211 to dismiss defenses, and thus, those of defendant's arguments that are addressed to the sustainability of its pleaded defenses are impertinent (see Wagner Affirmation, ¶¶ 7-19). To the extent that defendant asserts that the claim is one for lost or damaged property and that the motion for summary judgment should not be granted because claimant has failed to exhaust his administrative remedies, the claim clearly sounds in negligence for failure to provide claimant with adequate attire and not for the loss of a draft bag of clothes, and thus, the claim is not subject to the exhaustion requirement set forth in Court of Claims Act § 10 (9).
Similarly inapt is defendant's assertion that the allegations in claimant's moving papers are "merely conclusory and self-serving" (Wagner Affirmation, ¶ 24). Claimant's sworn submissions state unadorned and objective facts that are pertinent to his claim, as opposed to subjective statements or suppositions (compare Saleh v Bryant, 49 AD3d 991, 993 [3d Dept 2008] [plaintiff's affidavit sought to remedy deficiencies in her deposition about the degree of injury she sustained]) or "[m]ere conclusions or unsupported assertions" that were set forth in affidavit of an attorney who lacked personal knowledge (Sun Yau Ko v Lincoln Sav. Bank, 99 AD2d 943, 943 [1st Dept 1984], affd 62 NY2d 938 [1984]).
Further, to the extent that defendant implies that claimant's motion for summary judgment is premature because no discovery has been conducted (see Wagner Affirmation, ¶¶ 6, 26), defendant has not shown that it lacked the opportunity to conduct discovery, nor demonstrated that any material information is in the exclusive control of claimant/movant (see Semzock v State of New York, 97 AD3d 1012, 1013 [3d Dept 2012]; Bost v Thomas, 275 AD2d 513, 515 [3d Dept 2000]).
It is
ORDERED, that claimant's motion for summary judgment, M-82707, is DENIED.
April 3, 2013
Albany, New York
W. BROOKS DeBOW
Judge of the Court of Claims
Papers considered:
(1) Claim Number 121491, filed July 2, 2012;
(2) Verified Answer, filed July 20, 2012;
(3) Notice of Motion for Summary Judgment, filed December 10, 2012;
(4) Motion for Summary Judgment, sworn to November 27, ___ and Verified, November 27, 2012, with Exhibits A-G, including Statement of Brendon McPherson, sworn to July 5, 2012;
(5) Affirmation in Opposition to Claimant's Motion for Summary Judgment, dated January 30, 2013, with exhibits, including:
Affidavit of Donna Mainville, sworn to January 29, 2013; and
Affidavit of Anthony Smith, sworn to January 30, 2013.