Carlson v. State

• Decision Date: 08 September 2011
• Docket Number: No. 113748.,113748.
• Citation: 2011 N.Y. Slip Op. 21336,932 N.Y.S.2d 812,34 Misc.3d 242
• Parties: Mark Alan CARLSON, Claimant,v.The STATE of New York, Defendant.
• Court: New York Court of Claims

34 Misc.3d 242

932 N.Y.S.2d 812

2011 N.Y. Slip Op. 21336

Mark Alan CARLSON, Claimant,

v.The STATE of New York, Defendant.

No. 113748.

Court of Claims of New York.

Sept. 8, 2011.

Brown and Kelly, LLP by: Lisa T. Sofferin, Esq., for Claimant.Hon. Eric T. Schneiderman, New York State Attorney General by: Wendy E. Morcio, Esq., for Defendant.MICHAEL E. HUDSON, J.

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 N.Y.2d 223, 231, 413 N.Y.S.2d 141, 385 N.E.2d 1068 [1978]; Sillman v. Twentieth Century–Fox Film Corp., 3 N.Y.2d 395, 404, 165 N.Y.S.2d 498, 144 N.E.2d 387 [1957] ), with issue-finding rather than issue-determination the focus of the Court in reviewing the submissions ( Sillman, 3 N.Y.2d at 404, 165 N.Y.S.2d 498, 144 N.E.2d 387). All evidence must be viewed in a light most favorable to the nonmoving party ( Rotuba Extruders, 46 N.Y.2d at 231, 413 N.Y.S.2d 141, 385 N.E.2d 1068). 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 N.Y.2d 1065, 1067, 416 N.Y.S.2d 790, 390 N.E.2d 298 [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 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642 [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 N.Y.2d at 1067–1068, 416 N.Y.S.2d 790, 390 N.E.2d 298; Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718 [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 U.S. 58, 109 S.Ct. 2304, 105 L.Ed.2d 45 [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 New York, 436 U.S. 658, 691–694, 98 S.Ct. 2018, 56 L.Ed.2d 611 [1978] [municipality not vicariously liable as employer for section 1983 violation by employees] ). Summary judgment is also warranted with respect to the claimed violation of Mr. Carlson's state constitutional rights, as this case does not fit into the “narrow remedy” envisioned for such litigation by the Court of Appeals in Brown v. State of New York, 89 N.Y.2d 172, 192, 652 N.Y.S.2d 223, 674 N.E.2d 1129 (1996). Such a tort claim will only be recognized where it is necessary to effectuate the purpose of the underlying State constitutional protection that a claimant invokes, and there is no other remedy available ( Martinez v. City of Schenectady, 97 N.Y.2d 78, 735 N.Y.S.2d 868, 761 N.E.2d 560 [2001] ). Here, Claimant is pursuing other causes of action in this court, and in federal court, which arise from the same matters upon which his State constitutional claim is based.

Summary judgment will similarly be granted to the extent Claimant may have intended his allegations of a denial of reasonable accommodations for his disability as a basis for relief under the ADA. In granting dismissal the Court must initially reject Defendant's assertion that the ADA would not provide Claimant a money damage remedy, and instead would only afford him injunctive relief, which is beyond the jurisdiction of the Court of Claims. The ADA includes four subchapters, or titles, three of which prohibit discrimination on the basis of disability in varying contexts.⁹ Title I ( 42 USC §§ 11211– 12117), which addresses disability-based employment discrimination, and Title III ( 42 USC §§ 12182– 12189), which prohibits disability-based discrimination in public accommodations by private entities, would have no application herein. Conversely, provisions within Title II ( 42 USC §§ 12131– 12165), which prohibits disability-based discrimination in the “services, programs, or activities of a public entity” ( 42 USC § 12132), could apply, since the term “public entity” is defined inter alia as including not just local governments, and state departments and agencies, but also the states themselves ( see 42 USC § 12131[1][A], [B] ). Title II has...