New York State Court of Claims

New York State Court of Claims

Small v. THE STATE OF NEW YORK, #2000-010-011, Claim No. 100557, Motion No. M-60297


defendant's summary judgment


Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Terry Jane Ruderman
Claimant's attorney:
Defendant's attorney:
Attorney General for the State of New YorkBy: Richard Lombardo, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
March 28, 2000
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)



The following papers numbered 1-5 have been read and considered by the Court on defendant's motion to dismiss:
Notice of Motion, Attorney's Supporting Affirmation and Exhibit.........................1
Attorney's Opposing Affirmation and Exhibit.........................................................2
Attorney's Affirmation in Further Opposition and Exhibit......................................3
Affidavit of Dr. John Perilli and Exhibit....................................................................4

Affidavit of Dr. Richard Klyszejko and Exhibits.....................................................5

Claim No. 100557 alleges that claimant was denied reasonable and adequate care by defendant during his incarceration in State prison. Claimant asserts that defendant failed to treat a growth on claimant's head and that the claim arose on September 8, 1997 and continues to date (Defendant's Ex. A). Defendant moves to dismiss the claim, arguing that the claim fails to allege sufficient facts to state a cause of action for medical malpractice and that the continuous treatment doctrine does not apply and therefore the claim is untimely. Claimant asserts that he is not alleging malpractice, rather he is alleging that he was denied medical care.

Claimant has treated defendant's motion as one for summary judgment and has annexed claimant's medical records from September 8, 1997 through March 16, 1999 in opposition to the motion. Claimant, however, was unable to obtain any further medical records. Accordingly, by Interim Order file stamped December 2, 1999, this Court gave the parties notice that defendant's motion would be treated as one for summary judgment (CPLR 3211[c]) and directed defendant to provide claimant's attorney with claimant's medical records from September 8, 1997 through November 17, 1999. The Court further provided in its Interim Order that, upon receipt of the records, both parties shall be afforded the opportunity to file any additional papers on the summary judgment motion. Claimant submitted an Affirmation in Further Opposition to the motion and the medical records obtained from defendant. Defendant submitted the affidavit of Dr. John Perilli with an exhibit and the affidavit of Dr. Richard Klyszejko with exhibits.

To prevail on a motion for summary judgment, the moving party must establish its cause of action or defense sufficiently to warrant a court directing judgment in its favor as a matter of law (Zuckerman v City of New York, 49 NY2d 557, 562). Summary judgment is a drastic remedy and should not be granted where there is any doubt as to the existence of a triable issue (Andre v Pomeroy, 35 NY2d 361, 364). In the instant case, claimant asserts that, "the claim alleged is not for medical malpractice but rather for the State's failure to provide reasonable and adequate medical care to an inmate" (Claimant's Affirmation in Opposition, ¶ 10).

The Court has reviewed claimant's medical records and the other papers submitted by the parties. On September 8, 1997, during claimant's incarceration at Sing Sing Correctional Facility ("Sing Sing"), claimant presented himself to the facility clinic with a small lump on his head, which was characterized as a cyst. The cyst was monitored by the medical staff and an increase in size was later noted. However, because the cyst was not affecting claimant's daily living activities, there was a determination of lack of medical necessity warranting removal of the cyst. Claimant was subsequently transferred to Fishkill Correctional Facility ("Fishkill") where a biopsy of the cyst revealed that it was a benign scalp lesion. Notably, claimant does not refute the determination made by the medical staff, nor does claimant allege or argue, with any specificity, that a different course of treatment should have been followed. Indeed, claimant fails to particularize how defendant was either unreasonable or inadequate in its medical care.

Defendant's submissions detail the medical treatment claimant received during his incarceration. The affidavit of Dr. John Perilli, the Medical Director at Sing Sing, explains each reference in claimant's medical records regarding the treatment that claimant received while incarcerated at Sing Sing from June 20, 1997 through August 4, 1999. Perilli concluded that claimant was treated in a manner consistent with the applicable standard of care.

The affidavit of Dr. Richard Klyszejko, the Medical Director at Fishkill, explains each reference to claimant's medical record regarding the treatment claimant received while incarcerated at Fishkill from August 9, 1999 through February 29, 2000. Klyszejko also concluded that claimant was treated in a manner consistent with the applicable standard of care.

Upon review of all the papers submitted, and in light of the fact that claimant does not challenge the determinations of the medical staff as a departure from generally accepted medical standards and practice, claimant's conclusory allegation that he was not given reasonable and adequate medical care is unsubstantiated.

Accordingly, defendant's motion is GRANTED and the claim is hereby dismissed.

March 28, 2000
White Plains , New York

Judge of the Court of Claims