Marquez v City of New York

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Marquez v City of New York 2005 NY Slip Op 30475(U) March 29, 2005 Sup Ct, NY County Docket Number: 123370/01 Judge: Michael D. Stallman Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] SUPREME COURT OF THE STATE OF NEW YORK - NEW YORK COUNTY PRESENT: PART Index Number : 123370/2001 INDEX NO. MARQUEZ, RAYMOND .!?- MOTION DATE vs CITY OF NEW YORK MOTION SEQ. NO. Sequence Number : 2 MOTION CAL. NO. - STRIKE A PLEADING ?A/ this motion to/for 1-5 PAPERS NUMBERED Notice of Motion/ Order to Show Cause - Affidavits - Exhibits .._ -47---3 4 Cross-Motion: 1Ta Yes ill FILED No Upon the foregoing papers, it is ordered that this motion APR 0 5 2005 Dated: J. S. C. Check one: 0 FINAL DISPOSITION Check if appropriate: u @ NON-FINAL DISPOSITION DO NOT POST [* 2] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: PART 5 Index No. 123370/01 Raymond Marquez, PI ai n tiff, -againstThe City of New York and The New York City Dcpartinent or Corrections, Decision and Order FILED APR 0 5 2005 NJEW YQRK C O u ~ f C L E R ~ SOFFICE y Plaintiff moves for ai1 order (1) pursuant to CPLR 9 3126(3) striking dcfcndants' answer or in the altcmative, precluding defendants from submitting evidcnce at trial as to those itcms that defendants have failcd to provide during discovcry, (2) extending plaintiffs tiiiie to conduct defendants' dcpositions and (3) extending plaintiIi's time to file his note of'issue. The City crossmoves for an order dismissing the complaint on the grounds that "plaintiff failed to establish a special duty relationship and therefore failed to cstablish a claim in comnion law tort," (Aff in Support of Cross-motion, para. 1). In its papers. the City has not addressed plaintiff's second cause of action sccking damages for lost items of pcrsoiial property. Plaintiff seeks monetary damages for pcrsonal injuries allegedly sustained while he was detained at the Manhattan Dctcntion Ccntcr located at 125 White Strect, Ncw York, New York and at various jails locatcd on Riker's Island, Bronx, New York. Specifically, plaintiff alleges hc dcvclopcd bladder cancer and injury to the urcthra as a result of second-hand smoke he inhaled at these corrcctioiial facilities. Plaintiff alleges that the City was negligent by failing to house the plaintiff in a smoke-free environment.' Plaintiff also alleges that his personal propcrty was lost as a result of bciiig transfeired throughout these jails. [* 3] On a prior motion for summary judgment, the Court, intcr alia, already noted that the notice of claim and complaint stated a cognizablc common-law tort. In essence, plaintiff has stated a prcmises liability claim, to wit: by permitting smoking in DOC facilities, defendants causcd and created a condition that was not reasonably safe. As a building owner, the City has a duty to act as a reasonable pcrsoii would to maintain its premiscs in a reasonably safe condition. Valentine v State, 192 Misc.2d 706 (State has duty to maintain gym cquipment on prcmises of correctional facility in a safc condition). Whcther the premises were reasonably safe, or if not, whether defcndants were negligent, and if so, whcthcr suchnegligencc was a substantial factor in causing the injurics alleged, arc issucs for trial. Defendants cross-movc to dismiss the complaint on the grounds that plaintiff failed to establish a special duty relationship and therefore failed to state a claim against the municipal defendants in coinrnon law toit Generally, the special duty nilc limits a municipality s duty to protect a plaintiff from third-pcrsons (=would-be See assailants) or from harmful forces (u fires). Laucr v Citv, 95 NY2d 95. Where applicable, thc rule provides that a municipal defendant has no duty to act unless and until it assumes a special duty to that particular plaintiff to do so. Here, plaintiff is alleging that thc City defendants actcd either intentionally or negligently, x,by subjecting plaintiff to a smoky environment. See Notice of Claim, January 16, 200 I; Complaint, Dcceinber 12,2001, Tlic City s duty of carc to plaintiff was triggcrcd when it took him into custody. Sanchez v State, 99 NY2d 247 (Statc owes a duty of carc to safeguard inmates, having assumed physical custody of inmatcs who cannot protect and defend themsclvcs in the same way as those at liberty can); Kagm v State, 221 AD2d 7 (State owes a duty to its incarcerated citizens to provide them with adequate inedical care). -2- [* 4] Thc special duty doctrine is not applicable to the casc at bar where the claims relate to whether the municipal defendants' acts or omissions caused or created a condition claimed to be not reasonably safe. Under thc City's overbroad intcrprctation ofthe special duty doctrine, no duty would ever attach to any interaction betwcen the City or a City employee and an individual, whethcr in custody or not. While governmental immunity may be raised as a defense in appropriatc sihiations wherc plaintiffpleads a violation of a special duty, this defense was not plcaded in the City's answcr; it is inapplicable to this situation, and is insufficient to support summary judgmcnt dismissing the complaint as a mattcr of law. Accordingly, the City's cross- motion dismissing the remaining branch of the first cause of action allcging common law tort i s dcnied. As for plaintiffs motion, thc City shall respond to plaintiffs July 21, 2004 notice for discovery and inspection as agreed to in the August 17,2004 so-ordcrcd stipulation.2 Specifically, the City shall produce all records pertaining to plaintiff while he was in the custody of the Department of Corrections from July 31, 1998 though January 3, 2001 except for the records pcrtaining to the Correctional I-Icaltli Services, on or beforc May 11, 2005. As for the records pertaining to cigarette sales at the coiiiniissaries of all facilities wherc plaintiff was held from January 1, 1998 until Jaiiuary 30, 200 1, which the City agreed to search for in the so-ordered stipulation datcd August 17, 2004, the City shall scarch for such records and disclosc them on or before May I I , 2005. If a diligent search produces no rccords, the City shall file an affidavit froin an individual with the Dcpartment of Corrections having pcrsonal knowledge of thc scarch and the City's record-keeping practiccs, detailing what was searchcd and the negative result, on or before May 11, 2005. If the City fails to comply with this order, the City shall be -3- [* 5] precluded from disputing at trial that large quantities of cigarettes were sold to inmates from the City's prison commissaries during the period and in the locations wherc plaintiff was held in custody. As for prisoncr coinplaints involving sccond-hand srnokc, thc City shall turn over any rccords pertaining to complaints about air quality due to second-hand smoke for the period July 3 1 , 1998 through January 3,2001, on or before May I I , 2005. If a diligent search produces no records, the City shall file an affidavit from an individual with the Department of Corrcctions having personal luiowledgc of thc search and the City's record-keeping practices, dctailing what was searched and the negative result, on or before May 11, 2005. As for records pertaining to environmental testing of the intcrnal air quality and the presencc of cigarette smoke performcd in the subject correctional facilitics during the period plaintiff was in custody, (July 3 1 , 1998 through January 3 , 200 I ) thc City shall turn over all such records on or before May 1 1, 2005. If a diligent search produces no records, the City shall file an affidavit from an individual with the Dcpartrncnt of Corrections having personal knowledge oflhe search and the City's record-keeping practiccs, detailing what was searched and the negativc result, on or before May 1 1,2005. Without resolving any factual issues, the Court notes that there does not appcar to bc any disagreement between the parties that smoking is prcvalent in various prison areas, or that a large body of scicntific evidence has indicated that exposure to sccond-hand cigarette smoke can pose health hazards. Of critical important in this casc are the mixed issues of proximate causation and contributory causation, k, plaintiffs prior hcalth habits and iiiedical histoiy which are also trial ISSUCS. -4- [* 6] Defendant shall bc deposed on May IS, 2005 at the Office of the Corporation Counsel, 100 Church Street, Ncw York, New York, or at another date and location agreed to by the partics in a signed writing. Given the discovery schedule set forth above, thc compliance conference scheduled for April 26, 2005, is reschcduled for May 31, 2005 at 9:30 a.m., 80 Ccntre Street, Room 103. Plaintiffs time to file a note of issue is extcnded to May 3 1, 2005 This constitutcs the decision and order of the Court. Dated: March ENTER: MlCHAEL D.VSTALLMAN,J.S.C. I . By decision and ordcr datcd July 8, 2004, the Court granted partial summary judgment to defcndaiits, dismissing an alleged statutory violation of the Ncw York Statc Clcan Indoor Air Act. 2. In the August 17,2000 stipulation (para. 3) the City agrccd to respond to plaintiff s notice dated y July 21, 2004 within 30 days. That Notice to Produce datcd J ~ l 21, 2004 sought all rccords pcrtaiiiing to plaintiff, Raymond Marquez, prisoner number 349-98- 16340, while he was in the custody of tlic Ncw York City Departmciit of Correctioiis from on or about July 3 1, 1998 through and including on or about January 3,2001, at Rikcr s Island Correctional Facility and the New York City I-Iousc of Detention located on White Street in Manhattan, except for the records pertaining to the Correctional Ilcalth Scrvices, but including all other records for plaintiff while he was being held without bail pending trial. APR 0 5 2505 -5-

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