New York State Court of Claims

New York State Court of Claims

SMITH v. THE STATE OF NEW YORK, #2001-009-002, Claim No. 95794, Motion No. M-62561


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):

Nicholas V. Midey, Jr.
Claimant's attorney:
Defendant's attorney:
Attorney General
BY: Patrick B. Sardino, Esq.,
Assistant Attorney General of Counsel.
Third-party defendant's attorney:

Signature date:
January 18, 2001

Official citation:

Appellate results:

See also (multicaptioned case)


Defendant has brought this motion seeking both an order of preclusion and one of summary judgment dismissing the claim.

The following papers were considered by the Court in connection with this motion:
Notice of Motion, Affirmation in Support, with Exhibits 1,2

Attorney Affirmation (In Opposition), with Exhibits 3

This claim, alleging negligence and/or medical malpractice, was filed on March 12, 1997. Claimant alleges that he suffered injuries resulting from the failure of medical personnel at Auburn Correctional Facility to timely provide him with adequate medical care following an injury suffered by him on February 11, 1997.

A note of issue was filed with the Court on April 7, 2000, and following a conference on October 5, 2000, this claim was scheduled for trial to commence on January 29, 2001. Defendant has now filed the instant motion seeking an order of preclusion, based upon claimant's failure to disclose expert witness information. Defendant therefore requests an order precluding claimant from introducing any expert testimony at trial. Should the Court grant defendant's motion for preclusion, defendant further seeks an order of summary judgment, contending that claimant cannot, as a matter of law, prove his claim of medical malpractice without expert testimony.

In response to this motion, claimant's attorney affirms that expert disclosure has not been provided, and has advised the Court that claimant intends to rely solely upon medical records and lay witness testimony to establish his claim that the facility failed to provide timely medical treatment.

Based upon the affirmation of claimant's attorney, it is clear to the Court that claimant has not provided any expert witness disclosure, nor does claimant intend to call any expert medical witness at the trial of this claim. Accordingly, that aspect of defendant's motion seeking an order of preclusion pursuant to CPLR § 3126, precluding claimant from offering any expert medical testimony, must be and hereby is granted.

The Court must therefore address that aspect of defendant's motion seeking an order granting summary judgment pursuant to CPLR Rule 3212.

As set forth above, the note of issue in this claim was filed with the Court on April 7, 2000. This motion was filed with the Court on October 13, 2000. CPLR Rule 3212(a) provides that any motion for summary judgment must be made within 120 days after the filing of a note of issue, unless permission of the Court is first obtained upon good cause being shown.

In this claim, it is clear that the motion for summary judgment was brought well beyond the 120 days provided by statute. Furthermore, defendant did not seek leave of the Court prior to instituting the instant motion. These facts, standing alone, provide the Court with a sufficient basis upon which to deny this aspect of the motion.

Furthermore, even after considering the merits of the application for summary judgment, the Court must still deny defendant's application for summary judgment.

Summary judgment is the procedural equivalent of a trial (Andre v Pomeroy, 35 NY2d 361) and should be granted only when it has been established that there is no triable issue (Moskowitz v Garlock, 23 AD2d 943). The role of the Court, therefore, on a motion for summary judgment is not to resolve material issues of fact, but instead is to determine whether any such issues exist (Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395). If such issues exist, the motion for summary judgment must be denied. Only the existence of a material issue of fact, however, and not one based on conclusory or irrelevant allegations, will be sufficient to defeat a motion for summary judgment (Rotuba Extruders v Ceppos, 46 NY2d 223).

Expert medical opinion is generally required in order to establish a prima facie case of medical malpractice (see, Wells v State of New York, 228 AD2d 581; Armstrong v State of New York, 214 AD2d 812). In this case, however, claimant is not questioning the adequacy of medical treatment received, but rather alleges that his injuries were caused by a delay in providing him any medical treatment whatsoever. Claimant further contends that the delay in this matter was of such length that a fact finder would be able to decide the issue of liability without any expert medical testimony.

On this basis, claimant should be given the opportunity to present this issue at a trial on liability. Neither party, however, should interpret this decision as any indication that claimant will succeed at trial. Without expert medical testimony, which has been precluded herein, claimant will have a most difficult task. Claimant, however, should at least be given the opportunity to present his claim.

Accordingly, it is

ORDERED, that the aspect of defendant's motion seeking an order precluding claimant from introducing any expert medical testimony at trial pursuant to CPLR § 3126 is hereby GRANTED; and it is further

ORDERED, that the aspect of defendant's motion seeking an order of summary judgment pursuant to CPLR Rule 3212 is hereby DENIED.

January 18, 2001
Syracuse, New York

Judge of the Court of Claims