|Claimant short name:||WALKER|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||MAUREEN T. LICCIONE|
|Claimant's attorney:||LEE WALKER, pro se|
|Defendant's attorney:||HON. LETITIA JAMES, ATTORNEY GENERAL
By: Matthew H. Feinberg, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||August 26, 2019|
|See also (multicaptioned case)|
By claim filed September 24, 2018, claimant Lee Walker ("Claimant" or "Walker"), an inmate proceeding pro se, seeks to hold defendant State of New York ("Defendant" or "State") liable for injuries he sustained as the result of the alleged use of excessive force used against him by a correction officer ("C.O.") at Sing Sing Correctional Facility. Specifically, the claim alleges that Walker has a metal rod in his knee that sets off metal detectors whenever he passes through one, and as a result the medical department at the facility provided him with a permit for such situations. On May 2, 2018, Claimant went through a metal detector and the alarm rang. Walker explained the situation to a CO that was present, but despite that the CO performed a pat down during which he grabbed claimant from behind in a bear-hug hold, slammed him to the ground and then crushed Claimant by falling on top of him. The claim goes on to make a number of allegations about the resulting tier III hearing where Claimant was found guilty of various charges; calling it "fabricated".
On November 7, 2018, defendant interposed an answer in which it asserted a number of denials and raised various affirmative defenses, including the allegation that the injuries sustained by the Claimant were attributable, in whole, or in part, to his own conduct. Claimant now moves for summary judgment pursuant to CPLR 3212. Defendant opposes the application.
As an initial matter, Defendant asserts that Claimant's motion must fail because of his "failure to attach the pleadings to his motion" such that it does not meet the requirements of CPLR 3212 (b) (Aff. in Opp. ¶¶ 9-11). Such a procedural defect may be overlooked, however, if the record is "sufficiently complete" (Greene v Wood, 6 AD3d 976, 977 [3d Dept 2004]). This is the case here, where copies of the pleadings are filed with the Clerk of the Court. As a result, the Court will decide the motion on the merits.
Claimant supports his motion by his own affidavit, to which he attaches an Inmate Injury Report, what appears to be an incomplete Use of Force Report concerning the matter, and photographs taken of Walker after the incident.
In his affidavit, claimant summarizes the allegations he made in his claim. Claimant also points to Corrections Law §137(5) and quotes the following passage:
"No inmate in the care or custody of the department shall be subjected to degrading treatment, and no officer or other employee of the department shall inflict any blows whatever upon any inmate, unless in self defense, or to suppress a revolt or insurrection."
A review of the Inmate Injury Report and the Use of Force Report reveals that claimant suffered redness to his right scapula region, abrasion to his left elbow, and stiffness to his right arm. The Injury Report contains an inmate statement, as follows: "I went to the mess-hall and I got beat-up by the officers; jumped by 3 or 4. They told me to stop resisting but they twisted my arm." Based on this record, claimant asserts that he is entitled to summary judgment.
The proponent of a summary judgment motion has the burden to set forth 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 (see Alvarez v Prospect Hosp., 68 NY2d 320, 324  [citations omitted]). 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 (see Zuckerman v City of New York, 49 NY2d 557, 562 ).
Claimant has failed to meet his initial burden. Walker's own submission raises issues of fact, such as whether the C.O. was legally justified in his use of force. In addition, the statement Walker made on the Inmate Injury Report mentions nothing of a metal detector alarm going off, or of his being thrown to the ground, as has been alleged. The incomplete Use of Force Report also raises issues of fact as to what the entire document may contain. Further, claimant fails to address the aftermath the incident, which resulted in him being found guilty of various charges following a tier III hearing.
Finally, in a claim alleging excessive force by correction officers against an inmate, a determination of credibility is often the dispositive factor (see Davis v State of New York, 203 AD2d 234 [2d Dept 1994]; see e.g. Clark v State of New York, UID No. 2003-029-272 [Ct Cl, Mignano, J., Apr. 4, 2003] ["In situations involving inmate allegations of excessive force by a C.O. . . . the credibility of the respective witnesses is often the dispositive factor"]). Since Defendant has denied Claimant's allegations there are credibility issues that are not properly resolved on a motion for summary judgment (see S & A Realty Mgt. Corp. v Prestigiacomo, 306 AD3d 339, 340 [2d Dept 2003]).
Since Claimant has failed to make a prima facie showing, the Court need not address the sufficiency of defendant's opposition papers (see Alvarez v Prospect Hosp., 68 NY2d at 324 ["Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers"]).
Accordingly, claimant's motion no. M-94275 is denied.
August 26, 2019
MAUREEN T. LICCIONE
Judge to the Court of Claims
Papers read and considered on claimant's motion:
1. Notice of Motion for Summary Judgment, Affidavit in Support of Motion for Summary Judgment, and attached exhibits.
2. Affirmation in Opposition to Claimant's Motion for Summary Judgment, and attached exhibits.
August 26, 2019
Central Islip, New York
MAUREEN T. LICCIONE
Judge of the Court of Claims