New York State Court of Claims

New York State Court of Claims

RAYAM v. THE STATE OF NEW YORK, #2001-011-613, Claim No. 103136, Motion Nos. M-63976, CM-64109


Synopsis


Claimant has moved and defendant has cross-moved for summary judgment. Defendant's motion is granted and claim is dismissed.

Case Information

UID:
2001-011-613
Claimant(s):
HANDY LEE RAYAM, 96 A 2102
Claimant short name:
RAYAM
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
103136
Motion number(s):
M-63976
Cross-motion number(s):
CM-64109
Judge:
THOMAS J. McNAMARA
Claimant's attorney:
Handy Lee Rayam, Pro Se
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Paul F. Cagino, Esq.,Assistant Attorney General
Third-party defendant's attorney:

Signature date:
November 26, 2001
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision


Claimant has moved and defendant has cross-moved for summary judgment. The claim isbased on allegations that claimant was not provided medication for a period of eight days for a life threatening illness.

The proponent of a motion for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact (Winegrad v New York Univ. Med. Center, 64 NY2d 851, 853).

The parties agree that claimant was without prescribed medication for a period of eight days when his medication ran out and was not immediately refilled. While claimant places all of the blame for the lapse in medication with the State, the defendant maintains that the responsibility for the problem lies with claimant. The allegations made by each party raise issues of fact regarding blame for the lapse in medication and preclude granting summary judgment to either party on that basis.

Defendant, however, has also provided an affidavit by John E. Cunningham, M.D. regarding the issue of whether claimant suffered any damage as a result of the missed medications. In his affidavit Dr. Cunningham states that he has reviewed claimant's medical records for the period from one month before the lapse in medication to thirteen months after. Dr. Cunningham avers that if the missed medication caused any effect on claimant's health, the result could be seen in the records he reviewed. According to Dr. Cunningham, the missed eight days of medication made no difference in claimant's health.

Inasmuch as defendant has made a prima facie showing that claimant did not suffer any damage as a result of the alleged wrongdoing and given that damage is an essential element of a cause of action based on negligence, the burden shifts to claimant to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial (see, Alvarez v Prospect Hospital , 68 NY2d 320). Although claimant submitted an affidavit in response to the affidavit by Dr. Cunningham, the affidavit by claimant offers only hearsay allegations of statements by another doctor to refute Dr. Cunningham's findings. Hearsay allegations are not proof in evidentiary form and thus are insufficient to defeat the cross-motion for summary judgment. Accordingly, the cross-motion for summary judgment is granted and the claim is dismissed.


November 26, 2001
Saratoga Springs, New York

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



Papers Submitted:

1. Notice of Motion dated August 17, 2001
2. Affidavit in Support of Handy Lee Rayam sworn to the 18th day of August, 2001 with Memorandum of Law and exhibits annexed
3. Notice of Cross-Motion dated September 26, 2001 with exhibits annexed
4. Affirmation of Paul F. Cagino, Esq. dated September 26, 2001 with exhibits annexed
5. Reply Affidavit of Handy Lee Rayam sworn to the 5th day of October, 2001 with
exhibits annexed