New York State Court of Claims

New York State Court of Claims

ROBINSON v. New York, #2000-010-015, Claim No. 100963, Motion No. M-60519


defendant's motion to dismiss

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:
April 19, 2000
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers numbered 1-6 were 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

Affirmation in Further Opposition and Exhibit........................................................3

Affidavit of Dr. John Perilli and Exhibit..................................................................4

Letter of Claimant's Attorney Dated February 16, 2000..........................................5

Letter of Claimant's Attorney Dated April 5, 2000..................................................6

Filed Papers: Claim, Interim Order (File-stamped December 2, 1999)

Claim No. 100963 alleges that claimant, an inmate at Sing Sing Correctional Facility ("Sing Sing"), was denied reasonable and adequate care by defendant while he was incarcerated. Claimant asserts that defendant failed to treat claimant's nose and that the claim arose on January 15, 1998 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 January 15, 1998 through March 29, 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 (Ex. A). Defendant submitted the affidavit of Dr. John Perilli with an exhibit. Claimant's attorney submitted a letter dated February 16, 2000 and telephoned the Court to inquire why defendant was treating the motion as one for summary judgment and had submitted a doctor's affidavit. The Court's law clerk directed claimant's attorney to his own opposing affirmation, paragraphs 2, 3 and 4 which treated defendant's motion as one for summary judgment, and the Court's Interim Order giving the parties further notice that the Court was treating the motion as one for summary judgment and that the parties could submit further papers on the motion. By letter dated April 5, 2000, claimant's attorney indicated that he would not submit any further papers.

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, claimant presented himself to the facility clinic complaining of nasal congestion; he was provided a decongestant. Claimant continued to complain of nasal congestion and was treated for a nose bleed on April 10, 1998. On April 24, 1998, claimant was sent to an ear, nose and throat specialist who determined that claimant's condition was the result of a prior nasal fracture and recurrent sinus infections. Claimant's nose was x-rayed and the x-ray report of April 1, 1999 confirmed the report of the ear, nose and throat specialist. Requests for a CAT scan were denied by the H.M.O. as not medically indicated. Claimant complained of recurrent nose bleeds and was again x-rayed on November 9, 1999. The x-ray report confirmed the initial diagnosis of the ear, nose and throat specialist and noted that there have been no significant changes since the previous x-ray. The affidavit of Dr. John Perilli, the Medical Director at Sing Sing, details the medical treatment claimant received during his incarceration and concludes that claimant was treated in a manner consistent with the applicable standard of care.

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. 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.

April 19, 2000
White Plains, New York

Judge of the Court of Claims