Motion for summary judgment denied-issues of material fact.
|Claimant short name:||BROWN|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Claimant's attorney:||KEVIN BROWN
|Defendant's attorney:||HON. BARBARA D. UNDERWOOD
Attorney General for the State of New York
By: Benjamin L. Maggi, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||June 21, 2018|
|See also (multicaptioned case)|
The following papers numbered 1-2 were read and considered by the Court on claimant's motion for summary judgment:
Notice of Motion, Claimant's Supporting Affidavit and Exhibits............................1
Defendant's Affirmation in Opposition and Exhibits...............................................2
This claim alleges that on June 6, 2010, during claimant's incarceration at Greene Correctional Facility, he stepped into a hole in the "softball out field/soccer field" in the recreation yard and twisted his left knee (Defendant's Ex. A, ¶ 5). The claim further alleges that defendant was negligent in its maintenance of the recreation yard. By Decision and Order dated June 6, 2013, claimant's summary judgment motion was denied (Brown v State of New York, UID No. 2013-040-038 [Ct Cl, McCarthy, J., June 6, 2013]). Claimant brings this second motion seeking summary judgment on the ground that this second motion is supported by the supporting depositions of two inmate witnesses, Michael Law and Bobby Paige (Claimant's Exs).
Defendant opposes the motion and submits the affidavit of Raymond Neipoth regarding defendant's maintenance of the area in issue (Defendant's Ex. D).
Summary judgment is a drastic remedy which should not be granted unless it is made clear by the proponent of the application that there are no genuine issues of material fact (see Andre v Pomeroy, 35 NY2d 361, 364 ). Moreover, summary judgment is "rarely granted in negligence cases since the very question of whether a defendant's conduct amounts to negligence is inherently a question for the trier of fact in all but the most egregious instances" (Johannsdottir v Kohn, 90 AD2d 842 [2d Dept 1982]). The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law by tendering sufficient evidence to demonstrate the absence of any material issues of fact (Alvarez v Prospect Hosp., 68 NY2d 320, 324 ; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 ; Zuckerman v City of New York, 49 NY2d 557, 562 ). "Failure to make such [a] prima facie showing requires a denial of the motion regardless of the sufficiency of the opposing papers"(Alvarez, 68 NY2d at 324; see Winegrad, 64 NY2d at 853). Here, claimant has failed to meet his burden of making a prima facie showing of entitlement to judgment as a matter of law. Rather, the Court finds that there are numerous issues of material fact which require a trial where the Court may evaluate and weigh the credibility of the witnesses and the evidence presented.
Accordingly, claimant's motion for summary judgment is DENIED.
June 21, 2018
White Plains, New York
Judge of the Court of Claims