New York State Court of Claims

New York State Court of Claims

BLACKWELL v. THE STATE OF NEW YORK, #2001-011-591, Claim No. 101994, Motion Nos. M-63646, CM-63752


Synopsis


Claimant's motion for an order compelling a response to a demand for disclosure and defendant's cross-motion for summary judgment are denied.

Case Information

UID:
2001-011-591
Claimant(s):
JAMES BLACKWELL and MARJORIE S. VOGEL
Claimant short name:
BLACKWELL
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
101994
Motion number(s):
M-63646
Cross-motion number(s):
CM-63752
Judge:
THOMAS J. McNAMARA
Claimant's attorney:
James Blackwell, Pro Se
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Dennis M. Acton, Esq.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
October 4, 2001
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision


Claimant has moved for an order compelling a response to a demand for disclosure anddefendant has cross-moved for summary judgment.

The motion to compel disclosure is denied as Claimant has not provided a copy of the demand upon which the motion is based.

In support of the motion for summary judgment Defendant argues that the claim fails to state a cause of action because there are no factual allegations in the claim which establish a causal link between the transfer of Claimant from one correctional facility and another and the damages alleged i.e. left wrist infection. Defendant has also submitted an affidavit by a licensed physician in which he avers that "the care received by [Claimant] ... was appropriate and in conformance with applicable standards for good and acceptable medical practice." The doctor also maintains that in his opinion the medical records do not establish a causal link between the symptoms complained of and the transfer between correctional facilities.

The cause of action concerning treatment of Claimant's wrist is one for medical malpractice based upon improper care and is not related to the transfer. In fact, any claim based upon the transfer was dismissed by a prior order of the court (Blackwell v State of New York, Motion No. M-61527, August 8, 2000, NeMoyer, J.). Furthermore, the physician's affidavit submitted in support of the motion for summary judgment is conclusory and falls far short of the proof necessary to establish Defendant's prima facie entitlement to judgment as a matter of law (see, Kean v Community Gen. Hosp., 195 AD2d 910). Accordingly, the motion for summary judgment is denied.

The motion and cross-motion are denied.

October 4, 2001
Saratoga Springs, New York

HON. THOMAS J. MCNAMARA
Judge of the Court of Claims



Papers Submitted:

  1. Notice of Motion dated June 15, 2001
  2. Affidavit in Support of James Blackwell and Marjorie S. Vogel sworn to the 8th day of June, 2001
  3. Notice of Cross-Motion dated July 9, 2001
  4. Affidavit of Dennis M. Acton, Esq., in Opposition to Claimants' Motion and in Support of Defendant's Cross-Motion sworn to the 9th day of July, 2001
  5. Affidavit of Dr. Robert E. Hentschel sworn to the 9th day of July, 2001 with attachment
  6. Reply of James Blackwell to Defendant's Cross-Motion dated July 13, 2001
  7. Affidavit of James Blackwell in Support of Claimant's Reply to Defendant's Cross-Motion sworn to the 13th day of July, 2001 with exhibits annexed