New York State Court of Claims

New York State Court of Claims

RIOS v. THE STATE OF NEW YORK, #2002-005-509, Claim No. 98674, Motion Nos. M-64704, CM-64794


Claimant's motion for appointment of counsel is denied and Defendant's cross-motion for preclusion is granted to the extent noted and summary judgment is granted in part and denied in part.

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):
Claimant's attorney:
Orlando Rios,Pro Se
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Timothy P. Mulvey, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
March 13, 2002

Official citation:

Appellate results:

See also (multicaptioned case)


On March 13, 2002, the following papers, numbered 1 to 5, were read on motion by Claimant for appointment of counsel and on cross-motion by Defendant for preclusion and summary judgment:

1, 2 Notice of Motion, Affidavit and Exhibits Annexed

3, 4 Notice of Cross-Motion, Affirmation and Exhibits Annexed
  1. Filed Papers: Claim
Upon the foregoing papers, Claimant's motion is denied, and Defendant's cross-motion is granted in part and denied in part.

Claimant, in Motion No. M-64704, seeks appointment of an attorney. Claimant requests a "teleconference prior to any denial of this motion." This request is denied, as is the motion itself. First, Defendant asserts, without any dispute, that it has never been served with the motion papers herein. Second, and more compelling, I have already ruled on an identical motion, made and ruled upon in Claimant's presence, at the time this claim was first called for trial on October 19, 2000. That motion was denied in a bench decision, later memorialized in a written order in Motion No. M-62227, filed on February 8, 2001. This motion is denied in its entirety.

Defendant seeks preclusion of any expert medical testimony, relying upon the above-noted order in Motion No. M-62227, wherein I directed Claimant to notify the Defendant and the Court, if he retained a physician or other medical expert, within 60 days of the trial herein. The trial is scheduled less than 60 days from now, and no such notification has been provided, and the cross-motion is granted to the extent that it seeks to preclude any physician or other medical expert.

Consequently, Defendant urges that, in the absence of any expert medical testimony, Claimant will be unable to prevail on claims of medical malpractice, and thus seeks summary judgment as to such allegations.

To the extent that Defendant seeks summary judgment on any causes of action sounding in medical malpractice, because I have precluded herein any physician's or other expert medical testimony, the motion must be granted. In a medical malpractice claim, the Claimant has the burden of proof and must prove (1) a deviation or departure from accepted practice and (2) evidence that such deviation was the proximate cause of the injury or other damage. Where the medical treatment, or the lack thereof, received by a patient is in issue, then the cause of action is premised upon medical malpractice and a claimant must then establish that the medical care giver either did not possess or did not use reasonable care or best judgment in applying the knowledge and skill ordinarily possessed by practitioners in the field. Without the ability to present such medical proof, no viable claim that gives rise to liability on the part of the State can be sustained (Hale v State of New York, 53 AD2d 1025, lv denied 40 NY2d 804; Pike v Honsinger, 155 NY 201).

However, the claim herein also asserts "ministerial negligence, negligence and deliberate indifference" relating to the lack, and/or delay in providing medical care and treatment. Thus as to allegations that, inter alia, relate to the Defendant's provision of certain medications, or the failure to take x-rays or refer to a staff physician, which sound in the Defendant's alleged violation of its own administrative protocals [sic], and procedures at the Auburn infirmary, the availability of a physician or other expert medical testimony does not appear to be required and such may be established by other proof. To that limited extent, summary judgment as to such allegations is denied.

March 13, 2002
Rochester, New York

Judge of the Court of Claims