Lewis v. State, 2021-51213

CourtNew York Court of Claims
Writing for the CourtChristopher J. McCarthy, J.
PartiesRaymond Lewis Claimant v. The State of New York, Defendant.
Docket Number2021-51213,Claim 130608
Decision Date08 December 2021

Raymond Lewis Claimant

The State of New York, Defendant.

No. 2021-51213

Claim No. 130608

Court of Claims

December 8, 2021

Unpublished Opinion

Claimant's attorney: GERMAN RUBENSTEIN LLP, Joel M. Rubenstein, Esq.

Defendant's attorney: LETITIA JAMES Attorney General of the State of New York Michael T. Krenrich, Esq., AAG

Christopher J. McCarthy, J.


Claimant's Motion to strike State's Answer based upon alleged spoliation of evidence denied. However, Court finds Defendant disposed of relevant evidence and grants Motion to the extent of precluding Defendant from offering certain evidence and finds Claimant is entitled to an adverse inference.


For the reasons set forth below, Claimant's Motion, pursuant to CPLR §§ 3126(2) and (3) to strike the State's Answer, based upon the alleged spoliation of evidence, is denied. However, the Court finds that Defendant disposed of relevant evidence, and the Motion is granted to the extent that the Court precludes the State from offering evidence, testimonial or documentary, as to the condition of the wooden shelf or locker prior to Claimant's accident, nor may the State offer any expert testimony regarding the shelf or locker to refute Claimant's proof. In addition, Defendant may not offer any evidence, testimonial or documentary, regarding lack of notice of the condition of the shelf or locker based upon its failure to retain the cell inventory sheets, prior grievances, and work orders, for cell B1-6. Further, the Court finds that Claimant is entitled to an adverse inference against Defendant on the issue of notice at trial that the destroyed cell inventory sheets, prior grievances, and work orders would not have supported Defendant's position on the issue of notice and would not have contradicted the evidence offered by Claimant, and that the strongest inference will be drawn against Defendant on the issue of notice (see PJI 1:77.3; Flores v State of New York, UID No. 2016-049-102 [Ct Cl, Weinstein, J., Nov. 10, 2016]). Claimant is not relieved of his burden of establishing the existence of a defect and causal relationship between the defect and the accident.

The Claim, which was filed in the office of the Clerk of the Court on November 22, 2017, alleges that, on December 1, 2015, Claimant was incarcerated at Wallkill Correctional Facility (hereinafter, "Wallkill"). It is asserted that, at approximately 10:40 a.m. on that date, Claimant was in cell B1-6 when he was injured by a piece of shelving that fell on him as a result of Defendant's negligence (Claimant's Ex. J. [Claim], ¶¶ 3, 9-10).

Claimant's counsel, in his affirmation in support of the Motion, asserts that, on the morning of December 1, 2015, Claimant was ordered to move from his previous cell to cell B1-6 (Affirmation of Joel M. Rubenstein, Esq. [hereinafter, "Rubenstein Affirmation"], ¶ 6; see Claimant's Ex. A [transcript of Claimant's deposition], pp. 22-24; Claimant's Ex. B [Claimant's Affidavit], ¶ 6). [1] The cell was furnished with a bunk bed and also had, for each incarcerated individual (hereinafter, "II") housed in the cell, a locker, a chair, and a wooden shelf that sat atop each locker (Rubenstein Affirmation, ¶ 8, and Claimant's Ex. B). According to Correction Officer (hereinafter, "CO") Timothy Schreibel, shelves like the one that struck Claimant are supposed to be bolted down to lockers (Rubenstein Affirmation, ¶ 61; see Claimant's Ex. C [transcript of deposition of CO Schreibel], pp. 81-82). The shelves in the B1-6 cell each had a horizontal rod that ran below the shelf, similar to a shower rod. IIs hung their clothing on the rod and stored pots, pans, and other possessions on top of the shelf (Rubenstein Affirmation, ¶ 9; see Claimant's Ex. C, pp. 78-81). At his deposition, CO Schreibel identified a photograph showing a similar type of wooden shelf (although not necessarily the same size, weight, length, or width) and a locker similar to the type that was in the B1-6 cell that was involved in the incident (Rubenstein Affirmation, ¶ 9; Claimant's Ex. C, pp. 78-79).

Claimant had moved all of his belongings to cell B1-6 and left them outside the cell. His new cell mate, Mr. Davis, stood outside the cell, so Claimant could move his possessions, including his mattress, into the cell (Rubenstein Affirmation, ¶¶ 12-14; Claimant's Ex. A, pp. 24-25; Claimant's Ex. B). Claimant entered the cell, sat in the folding chair in front of his locker, and Mr. Davis passed Claimant his draft bags (Rubenstein Affirmation, ¶¶ 15-16; Claimant's Ex. A, pp. 24-25). After a minute or two of sitting in the chair, Claimant leaned back and either the chair or his body made contact with the locker, causing the wooden shelf that was on top of it to fall and strike him in the head and neck, and he began bleeding from his head (Rubenstein Affirmation, ¶¶ 17-18; Claimant's Ex. A, pp. 38-40). According to the logbook, Claimant reported the incident to CO Schreibel at about 12:15 p.m. (State's Ex. II, unnumbered pp. 2-3; Rubenstein Affirmation, ¶ 19). Nurse Sullivan was notified and Claimant was escorted to the infirmary, where his head was wrapped in gauze (Rubenstein Affirmation, ¶ 20; Claimant's Ex. A, pp. 41-42). When he returned from the infirmary, Claimant was advised by a CO to leave the shelf on the floor inside the cell (Rubenstein Affirmation, ¶ 22; Claimant's Ex. A, p. 51). Prior to the incident, Claimant did not observe the shelf to be loose or wobbling, and he did not have any reason to believe that it was not properly secured (Rubenstein Affirmation, ¶ 23; Claimant's Ex. A, p. 38).

On February 11, 2016, Claimant served a Claim upon Defendant (Claimant's Ex. G; State's Ex. A). Defendant served a Verified Answer, dated March 22, 2016, upon Claimant (Claimant's Ex. H). By stipulation dated April 8, 2016, the parties agreed to treat the document served upon Defendant on February 11, 2016 as a Notice of Intention to File a Claim (Claimant's Ex. I). On November 22, 2017, the instant Claim was electronically served and filed (Claimant's Ex. J; State's Ex. B). Defendant served and filed its Verified Answer on January 10, 2018 (Claimant's Ex. K; State's Ex. C).

The parties engaged in extensive discovery, during which it was learned that the shelf from cell B1-6 that fell and injured Claimant was taken out of use on December 1, 2015 and never was used again. It also was discovered that the shelf was destroyed sometime around May 2016 (Affirmation of Michael T. Krenrich, Esq., Assistant Attorney General [hereinafter, "Krenrich Affirmation"], ¶ 41; State's Ex. W [Supplemental Affidavit of Robert Milby (dated July 2, 2020)], ¶ 5). Further, there are no documents setting forth the dimensions or weight of the shelf (Rubenstein Affirmation, ¶ 60; State's Ex. W, ¶ 5). In addition, Mr. Milby, the Wallkill Plant Superintendent, stated that there is no way of knowing if the locker that now is in cell B1-6 is the same locker that was in the cell on December 1, 2015 (Claimant's Ex. L [Supplemental Affidavit of Robert Milby (dated November 5, 2020)], ¶ 6; State's Ex. EE, ¶ 6). It also was discovered that cell inventory sheets, prior grievance complaints regarding cell B1-6,...

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