Hayes v. The State of New York, D.O.C.S. et al, No. 9:2010cv01201 - Document 102 (N.D.N.Y 2013)

Court Description: DECISION AND ORDER: ORDERED, that the Report-Recommendation (Dkt. No. 98 ) is accepted and adopted in all respects. See 28 U.S.C. § 636(b)(1). ORDERED, that D.O.C.S., C.O. Burch, C.O. Wright, C.O. Jones, and the State of New York's mot ion for summary judgment (Dkt. No. 86 ) is GRANTED in part and DENIED in part. ORDERED, that D.O.C.S. and the State of New York are DISMISSED from this action. ORDERED, that all claims against C.O. Burch, C.O. Wright, and C.O. Jones in their offi cial capacities are DISMISSED. ORDERED, that Smith & Wesson's motion for summary judgment (Dkt. No. 85 ) is GRANTED. ORDERED, that Smith & Wesson is DISMISSED from this action. ORDERED, that this matter is referred back to Magistrate Judge Treece for the assignment of trial counsel within thirty (30 days). ORDERED, that upon the assignment of trial counsel, the matter shall be forwarded to the undersigned for a trial date to be set. Signed by Judge David N. Hurd on 9/18/13. (served on plaintiff by regular mail) (Attachments: # 1 Report-Recommendation and Order) (alh, )

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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK -------------------------------RONALD HAYES, Plaintiff, -v- 9:10-CV-1201 THE STATE OF NEW YORK, D.O.C.S.; C.O. BURCH, Great Meadow Correctional Facility; C.O. WRIGHT, Great Meadow Correctional Facility; C.O. JONES, Great Meadow Correctional Facility; SMITH & WESSON; and THE STATE OF NEW YORK, Defendants. -------------------------------APPEARANCES: OF COUNSEL: RONALD HAYES 02-A-4085 Plaintiff, Pro Se Elmira Correctional Facility P.O. Box 500 Elmira, NY 14902 HON. ERIC T. SCHNEIDERMAN Attorney General for the State of New York Attorneys for State Defendants The Capitol Albany, NY 12224 KEITH A. MUSE, ESQ. Ass't Attorney General PIETRAGALLO, GORDON, ALFANO, BOSICK & RASPANTI, LLP Attorneys for Defendant Smith & Wesson One Oxford Centre, 38th Floor Pittsburgh, PA 15219 CLEM C. TRISCHLER, ESQ. STRONGIN ROTHMAN & ABRAMS, LLP Attorneys for Defendant Smith & Wesson 5 Hanover Square, 4th Floor New York, NY 10004 HOWARD F. STRONGIN, ESQ. DAVID N. HURD United States District Judge DECISION and ORDER Pro se plaintiff Ronald Hayes brings this action pursuant to 42 U.S.C. § 1983 and New York State products liability laws. On August 27, 2013, the Honorable Randolph F. Treece, United States Magistrate Judge, advised, by Report-Recommendation, that the State defendants' motion for summary judgment be granted in part and denied in part, and that Smith & Wesson's motion for summary judgment be granted in its entirety. Plaintiff and defendant C.O. Wright timely filed objections to the Report-Recommendation. Defendant Smith & Wesson belatedly replied to plaintiff's objections, urging adoption of the ReportRecommendation. Based upon a de novo review of the portions of the Report-Recommendation to which plaintiff and C.O. Wright objected, the Report-Recommendation is accepted and adopted in all respects. See 28 U.S.C. § 636(b)(1). Therefore, it is ORDERED that 1. D.O.C.S., C.O. Burch, C.O. Wright, C.O. Jones, and the State of New York's motion for summary judgment is GRANTED in part and DENIED in part; 2. D.O.C.S. and the State of New York are DISMISSED from this action; 3. All claims against C.O. Burch, C.O. Wright, and C.O. Jones in their official capacities are DISMISSED; 4. Smith & Wesson's motion for summary judgment is GRANTED; 5. Smith & Wesson is DISMISSED from this action; -2- 6. This matter is referred back to Magistrate Judge Treece for the assignment of trial counsel within thirty (30 days); and 7. Upon the assignment of trial counsel, the matter shall be forwarded to the undersigned for a trial date to be set. The Clerk is directed to serve a copy of this Decision and Order upon plaintiff in accordance with the Local Rules. IT IS SO ORDERED. Dated: September 18, 2013 Utica, New York. Plaintiff's excessive force claims remain against C.O. Burch, C.O. Jones, and C.O. Wright. -3-

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