Pro se Claimant's Motion to strike State's Answer and for summary judgment denied.
|Claimant(s):||JASON EARL CAMPO|
|Claimant short name:||CAMPO|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||CHRISTOPHER J. McCARTHY|
|Claimant's attorney:||Jason Earl Campo, Pro Se|
|Defendant's attorney:||LETITIA JAMES
Attorney General of the State of New York
By: Douglas R. Kemp, Esq., AAG
|Third-party defendant's attorney:|
|Signature date:||April 17, 2019|
|See also (multicaptioned case)|
For the reasons set forth below, the Motion of Claimant, Jason Earl Campo, appearing pro se, to strike the State's Answer and for summary judgment in his favor is denied.
This pro se Claim, was filed in the office of the Clerk of the Court on May 1, 2015 and alleges that, on August 17, 2013, while incarcerated at Franklin Correctional Facility (hereinafter, "Franklin"), Claimant re-injured his right shoulder working at his job at Franklin while lifting equipment out of the recreational yard shack that is kept there for the inmates. He asserts that he had surgery on his right shoulder on April 4, 2013, four months prior to this injury. He further states that Franklin received documentation regarding the disability to his shoulder from the county jail where he was incarcerated prior to being transferred to Franklin.
By Decision and Order dated May 25, 2016, this Court granted Claimant's Motion to amend his Claim stating:
The Court has reviewed the Claim and the proposed Amended Claim and finds that the proposed Amended Claim asserts the same causes of action as the Claim. The only difference the Court can discern is that the Amended Claim is reworded and provides additional detail than that reflected in the Claim and also provides a detailed breakdown of the ad damnum clause … Claimant's Motion to serve and file an amended claim is granted and Claimant is directed to serve and file his Amended Claim, in the form attached to his motion, within forty (40) days of the date of filing of this Decision and Order, as provided in Section 206.7(b) of the Uniform Rules for the Court of Claims. Defendant's answer to the Amended Claim shall be served and filed within forty (40) days after service of the Amended Claim.
(Campo v State of New York, UID No. 2016- 040-031 [Ct Cl, McCarthy, J., May 25, 2016]).
The Court notes that the Court file contains a copy of the Claim, the State's Verified Answer, and the State's Verified Answer to the Amended Claim. The Court does not have a copy of Claimant's Amended Claim.
The State's Verified Answer to the Claim, which was filed in the office of the Clerk of the Court on June 4, 2015 admits the allegations contained in paragraph 1 of the Claim, denies the allegations in paragraph 2 of the Claim, and denies knowledge or information sufficient to form a belief as to the truth of the allegations contained in the remainder of the Claim. The State also asserts five affirmative defenses in its Answer. The Verified Answer to the Amended Claim was filed in the office of the Clerk of the Court on August 31, 2016 admits the allegations contained in paragraph 1 of the Claim, and denies the allegations contained in the remainder of the Claim. The State also asserts seven affirmative defenses in its Answer to the Amended Claim, the five raised in the original Answer, and two dealing with Claimant's asserted failure to serve and file the Amended Claim as set forth in the Court's Decision and Order stated above, thus, making the Amended Claim a nullity.
CPLR 3018 relates to responsive pleadings. Subdivision (a) refers to denials and states that "[a] party shall deny those statements known or believed by him to be untrue. He shall specify those statements as to the truth of which he lacks knowledge or information sufficient to form a belief and this shall have the effect of a denial."
According to Professor Patrick M. Connors, when an allegation is denied, the allegation must be proved by the party pleading it (see Connors, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3018:2, at 299). The burden is thus upon Claimant to establish the allegations that were denied in the State's Answer.
A motion to dismiss defenses may be made on the ground that a defense is not stated or has no merit (CPLR 3211[b]). "[A]n affirmative defense should not be dismissed if there is any doubt as to its availability" (Thy Tran v Avis Rent A Car, 289 AD2d 731, 732 [3d Dept 2001]; see Nahrebeski v Molnar, 286 AD2d 891 [4th Dept 2001]). "It is well settled that '[o]n a motion to dismiss a defense pursuant to CPLR 3211(b), all of defendant's allegations must be deemed to be true and defendant is entitled to all reasonable inferences to be drawn from the submitted proof' " (Capital Tel. Co. v Motorola Communications and Elecs., 208 AD2d 1150, 1150 [3d Dept 1994], quoting Grunder v Recckio, 138 AD2d 923, 923 [4th Dept 1988]; see Suarez v State of New York, 60 AD3d 1243 [3d Dept 2009]). Moreover, the movant "[bears] the burden of demonstrating that those defenses [are] without merit as a matter of law" (Vita v New York Waste Services, LLC, 34 AD3d 559, 559 [2d Dept 2006]; see Suarez v State of New York, 14 Misc 3d 1230[A] [Ct Cl 2006], affd 60 AD3d 1243, supra).
The Court has reviewed the affirmative defenses raised by Defendant in both the Answer and the Answer to the Amended Claim. Claimant has not addressed each defense separately and asserts, in only general and conclusory fashion in his Notice of Motion, that the Answer should be stricken. He does not address this portion of the Motion in his affidavit. Each of the defenses must stand pending a factual determination of the issue raised in each defense. Accordingly, the portion of Claimant's Motion to strike the Answer and the Answer to the Amended Claim, therefore, is denied.
The Court now turns to that portion of the Motion that seeks summary judgment. Summary judgment is a drastic remedy to be granted sparingly and only where no material issue of fact is demonstrated in the papers related to the motion (see Crowley's Milk Co. v Klein, 24 AD2d 920 [3d Dept 1965]; Wanger v Zeh, 45 Misc 2d 93 [Sup Ct, Albany County 1965], affd 26 AD2d 729 [3d Dept 1966]). CPLR 3212(b) requires that a motion for summary judgment be supported by a copy of the pleadings (Capelin Assoc. v Globe Mfg. Corp., 34 NY2d 338 ). In support of his Motion, Claimant submitted a copy of his Amended Claim (which, as stated above, does not appear to have been filed in the office of the Clerk of the Court) and the Verified Answer to the Amended Claim, but did not submit a copy of the Claim or Verified Answer to the Claim. The failure to include all the pleadings in support of a motion for summary judgment requires that the motion be denied, regardless of the merits of the motion (Davis v State of New York, 151AD3d 1411 [3d Dept 2017]; Senor v State of New York, 23 AD3d 851 [3d Dept 2005]; Bonded Concrete, Inc. v Town of Saugerties, 3 AD3d 729 [3d Dept 2004], lv dismissed 2 NY3d 793 ; Deer Park Assocs. v Robbins Store, 243 AD2d 443 [2d Dept 1997]; CPLR 3212[b]).
CPLR 3212(b) also requires that the motion be supported by "available proof." "The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case" (Winegrad v New York Univ. Med. Center, 64 NY2d 851, 853 ; see Alvarez v Prospect Hosp., 68 NY2d 320, 324 ; Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 ). "Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers" (Alvarez v Prospect Hosp., supra at 324; see Winegrad v New York Univ. Med. Center, supra at 853).
However, assuming, arguendo, that Claimant had supported his motion by including a copy of all the pleadings, the Court further finds that Claimant failed to make the required prima facie showing of entitlement to judgment as a matter of law.
Claimant asserts in his affidavit that, on April 23, 2013(1) (prior to his incarceration), he underwent surgery on his right shoulder to treat a workplace injury. He was subsequently sentenced to a term of seven years imprisonment, and was transferred to the custody of the Department of Corrections and Community Supervision (hereinafter, "DOCCS") custody on June 17, 2013 (Affidavit of Jason Earl Campo [hereinafter, "Campo Affidavit"], unnumbered p. 3, under heading "CHRONOLOGY").
Claimant states he was given a job in the Franklin recreation yard on July 29, 2013, despite his prior shoulder surgery and his complaints of shoulder pain. According to Claimant, this was a violation of his doctor's post-surgical orders. Claimant alleges that he was injured on August 17, 2013 while lifting a 75-pound punching bag in the recreation yard (id., unnumbered p. 4)
Claimant submitted the affirmation of William W. Colman, M.D., who performed the April 23, 2013 surgery. Dr. Colman avers that he began treating Claimant on March 6, 2013 and that Claimant was last seen on May 20, 2013 by a "mid-level" member of his staff. The doctor states that Claimant was advised to avoid abduction and external rotation, but that "[t]his would only have involved work restrictions for his current line of occupation." Claimant states in his affidavit, at the time of his injury, December 31, 2012, he was employed by Midas Muffler and Brakes, and was injured using a tire installation machine (Campo Affidavit, unnumbered p. 2).
In order to fulfill the Court's function in deciding a motion for summary judgment, the proof must be examined in a light most favorable to the party opposing the motion (Iwaszkiewicz v Callanan Indus. Inc., 258 AD2d 776, 777 [3d Dept 1999]). In so doing, the Court concludes that Claimant has not eliminated all issues of material fact. Claimant has not offered any evidence to explain what is meant by "abduction" and "external rotation" and how long he was to avoid such movement. In addition, Claimant has not offered any proof that these purported restrictions were ever conveyed to DOCCS, nor has he offered competent evidence to causally relate his shoulder injury with any alleged improper or inadequate work limitations placed by the medical staff. The uncertified medical records do not show any medical determination, prior to Claimant's August 2013 injury, that his DOCCS work assignments should be restricted or limited. The medical records do establish, however, that Claimant availed himself of the medical staff by requesting sick call on a number of occasions, that the medical staff treated him for his complaints, and that he was provided several medical excuse slips after his injury that imposed work restrictions on his activities.
While Claimant asserts that medical staff should have placed medical restrictions on his work prior to his August 2013 injury, whether or not medical staff erred in this regard requires expert testimony, which Claimant has failed to provide.
Therefore, based upon the foregoing, that portion of Claimant's Motion for summary judgment in his favor is denied.
April 17, 2019
Albany, New York
CHRISTOPHER J. McCARTHY
Judge of the Court of Claims
The following papers were read and considered by the Court on Claimant's Motion for summary judgment and to strike the State's Answer:
Notice of Motion, Affidavit,
Exhibits attached & Memorandum
of Law 1
Affirmation in Opposition 2
Filed Papers: Claim, Answer, Answer to Amended Claim
1. As noted above, the Claim asserts that the surgery occurred on April 4, 2013. The Amended Claim also states that the surgery was on April 4, 2013 (see Ex. A attached to Motion).