Carlson v. State

• Decision Date: 08 September 2011
• Docket Number: # 2011-034-547,Motion No. M-79726,Claim No. 113748
• Parties: CARLSON v. THE STATE OF NEW YORK
• Court: New York Court of Claims

CARLSON
v.
THE STATE OF NEW YORK

# 2011-034-547
Claim No. 113748
Motion No. M-79726

Court of Claims of New York

September 8, 2011

Synopsis

Title II of the Americans with Disabilities Act (42 USC § 12131 et seq.) allows for a cause of action for money damages directly against the State of New York, distinguishing Lugo v St. Nicholas Assoc., 18 AD3d 341 (2005).

Case information

UID: 2011-034-547
                Claimant(s): MARK ALAN CARLSON
                Claimant short name: CARLSON
                Footnote (claimant name)
                Defendant(s): THE STATE OF NEW YORK
                Footnote (defendant name)
                Third-party claimant(s)
                Third-party defendant(s)
                Claim number(s): 113748
                Motion number(s): M-79726
                Cross-motion number(s):
                Judge: MICHAEL E. HUDSON
                 BROWN AND KELLY, LLP
                Claimant's attorney:
                 BY: LISA T. SOFFERIN, ESQ.
                 HON. ERIC T. SCHNEIDERMAN
                Defendant's attorney: New York State Attorney General
                 BY: WENDY E. MORCIO, ESQ.
                Third-party defendant's attorney:
                Signature date: September 8, 2011
                City: Buffalo
                Comments:
                Official citation:
                Appellate results:
                See also (multicaptioned case)
                

Decision

Defendant has moved pursuant to CPLR 3212 for partial summary judgment.¹ The Court will grant the motion, in limited part.

The Court has reviewed the following documents:

1. Claim,² verified May 22, 2006,³ filed May 25, 2007;
2. Answer, verified June 28, 2007, filed June 29, 2007;
3. Amended Answer,⁴ verified April 25, 2011, filed April 26, 2011;
4. Notice of Motion for Partial Summary Judgment, dated April 15, 2011, filed April 18, 2011;
5. Affidavit in Support of Motion for Partial Summary Judgment of Wendy E. Morcio, sworn to April 15, 2011, with attached exhibits, and affidavit of Melissa Trostle, sworn to April 14, 2011;
6. Affirmation of Lisa T. Sofferin, dated May 25, 2011, filed May 27, 2011, with attached exhibits;
7. Reply Affidavit in Support of Motion for Partial Summary Judgment of Wendy E. Morcio, sworn to May 27, 2011, filed June 1, 2011, with attached exhibits, and affidavits of Richard Woodward II, sworn to May 27, 2011, and Robert F. Raymond, sworn to April 22, 2011;
8. Affidavit of Mark Alan Carlson, sworn to May 27, 2011, filed June 3, 2011;⁵
9. Letter of Wendy E. Morcio, dated June 8, 2011.

Claimant is a former inmate, having been confined at several State correctional facilities following his conviction in March of 2005 for a felony level driving while intoxicated charge. Mr. Carlson is also an amputee, with a right lower leg prosthesis, and reported left leg impairments. He has filed this claim to recover damages for three matters that allegedly arose during his incarceration. The first incident reportedly occurred at Gowanda Correctional Facility ("Gowanda") on May 31, 2005, and involved his alleged fall down a flight of stairs while he was traveling to the facility infirmary. According to Claimant, his fall represented a consequence of a number of failings on the part of prison officials, ranging from his initial assignment to a multi-level facility, the failure to house or move him to a first-floor cell, a determination to supply him crutches rather than admit him to the infirmary after his prosthesis broke, and a refusal to allow him to use a facility elevator to travel to the infirmary. The second incident also arose at Gowanda on May 31, 2005, and involved the claimed failure of the facility medical staff to properly diagnose and treat a shoulder injury he allegedly sustained in the course of his fall. The third incident arose at Livingston Correctional Facility ("Livingston") on October 25, 2005, and stems from the alleged negligent medical treatment of Claimant's right leg. Mr. Carlson contends more generally that over the periods in question the Department of Correctional Services ("DOCS")⁶ did not provide "reasonable accommodation(s)" for his disability, a failing that contributed to the injuries he has sustained. To support recovery for those incidents Mr. Carlson has urged causes of action for negligence, medical malpractice, and the violation of his civil rights in regards to cruel and unusual punishment under both the Eighth Amendment to the United States Constitution, and article I, § 5 of the New York Constitution.

As Defendant has noted, Mr. Carlson has also filed a federal court action that largely addresses the same incidents.⁷ That action variously urges causes of action against DOCS and/or several of its employees or former employees for claimed civil rights violations under 42 USC 1983,⁸ as well as violations of Title II of the Americans with Disabilities Act (42 USC § 12131 et seq.), the Rehabilitation Act (29 USC § 794 et seq.), and other constitutional claims, including cruel and unusual punishment under the Eighth Amendment and the New York Constitution.

Defendant now moves for partial summary judgment dismissing the causes of action based upon negligence, state and federal constitutional claims, and any alleged failure to afford reasonable accommodations for his disability. Specifically, the State seeks dismissal of any requests for recovery based upon premises liability on the ground that Claimant has failed to plead that the stairway on which he fell was defective in any manner. Defendant also seeks dismissal of the claims of negligence in Mr. Carlson's assignment to Gowanda (claim, paragraph 48 [A]) for lack of subject matter jurisdiction, urging that any challenge to such discretionary determinations can only be addressed in a proceeding under CPLR article 78. So also, Defendant contends that the claim must fail to the extent premised on a purported failure of reasonable accommodation for his disability, and set forth within subparagraphs B, C, E, F, G, and H of paragraph 48 of the claim, as representing an insufficient pleading of a cause of action under the Americans with Disabilities Act ("ADA") (42 USC § 12101 et seq.). The State further urges that even if properly pleaded, the Court of Claims lacks jurisdiction to consider an ADA claim against the State. Lastly, Defendant seeks to dismiss the requests for recovery set forth within subparagraphs D, I, J, and K of paragraph 48 to the extent premised upon ordinary negligence, in that those allegations instead reflect efforts to recover for medical malpractice. For the reasons that follow the Court will grant Defendant's motion, in limited part.

Summary judgment is a drastic remedy, one which should not be granted where there is any doubt as to the existence of a triable issue of fact (Rotuba Extruders v Ceppos, 46 NY2d 223, 231[1978]; Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957]), with issue-finding rather than issue-determination the focus of the Court in reviewing the submissions (Sillman, 3 NY2d at 404). All evidence must be viewed in a light most favorable to the nonmoving party (Rotuba Extruders, 46 NY2d at 231). To obtain such disfavored relief a movant must establish his cause of action or defense "sufficiently to warrant the court as a matter of law in directing judgment" in his favor (CPLR 3212 [b]), and must do so by tender of evidentiary proof in admissible form (Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1067 [1979]). The failure to satisfy that initial burden requires the denial of motion, without considering the sufficiency of the opposing papers (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). Conversely, once a movant has satisfied that burden the party opposing the motion would have the burden of showing facts sufficient to require a trial of any issue of fact, or demonstrate an acceptable excuse for the inability to tender such proof in admissible form (CPLR 3212 [b]; Friends of Animals, 46 NY2d at 1067-1068; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).

The Court will grant summary judgment dismissing the cause of action under 42 USC § 1983. The State is not a "person" amenable to suit within the meaning of section 1983 (Will v Michigan Dept. of State Police, 491 US 58 [1989]), and recovery against the State under respondeat superior principles is not authorized under that statute (see Monell v Department of Social Servs. of City of...