Opinion
# 2015-041-035 Claim No. 122493 Motion No. M-86287
05-11-2015
SHAWN NELSON v. THE STATE OF NEW YORK
SHAWN NELSON Pro Se HON. ERIC T. SCHNEIDERMAN New York State Attorney General By: Belinda A. Wagner, Esq. Assistant Attorney General
Synopsis
Claimant's renewed motion for summary judgment is denied in claim alleging assault by correction officer 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: | 2015-041-035 |
| Claimant(s): | SHAWN NELSON |
| Claimant short name: | NELSON |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 122493 |
| Motion number(s): | M-86287 |
| Cross-motion number(s): | |
| Judge: | FRANK P. MILANO |
| Claimant's attorney: | SHAWN NELSON Pro Se |
| Defendant's attorney: | HON. ERIC T. SCHNEIDERMAN New York State Attorney General By: Belinda A. Wagner, Esq. Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | May 11, 2015 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant renews his prior motion for summary judgment which was denied by the Court's Decision and Order, filed September 22, 2014, because claimant had failed to provide a copy of the pleadings in support of the prior motion. Defendant opposes the claimant's motion.
The amended claim alleges that defendant's unnamed correction officer ("Officer A") assaulted claimant at Clinton Correctional Facility (Clinton) on June 17, 2012 at 3:30 p.m. resulting in personal injuries and damages. Defendant's answer denies the allegations of the amended 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., Inc., 31 AD3d 877 [3d Dept 2006]).
Summary judgment is "a drastic remedy" (Lebanon Val. Landscaping, Inc. 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 cause of action. The only proof offered by claimant is an unsworn partial copy of the amended claim.
Claimant's "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 affirmation of defendant's attorney, along with the attached exhibits, including an affidavit from a Clinton correction officer present at the time of the alleged assault, shows, at a minimum, the existence of triable issues of fact as to whether any assault took place at the time and place 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.
May 11, 2015
Albany, New York
FRANK P. MILANO
Judge of the Court of Claims
Papers Considered:
1. Claimant's Notice of Motion, filed February 10, 2015, and annexed exhibits;
2. Affirmation of Belinda A. Wagner, dated February 18, 2015, and annexed exhibits, including the affidavit of Joseph Jabaut, sworn to February 13, 2015.