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
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
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.