Filed Papers: Verified Claim, filed March 26, 2001; Verified Answer filed May
11, 2001; Decision and Order filed June 21, 2001; and Decision and Order filed
August 15, 2001. These motions arise from the pro se Claimant's attempts
to proceed in accordance with the Court's two prior decisions regarding
disclosure. As the Court had previously stated, Claimant was putting the cart
before the horse by moving for disclosure without the service of a demand for
same upon defendant. Claimant does so again in M-64141, by seeking an order
compelling disclosure, inter alia, of a litany of medical records,
correspondence, and memorandums " in toto" (Smith Affidavit, ¶1),
without indicating that a demand for same has been made. In opposition, the
Defendant asserts the motion is improper and premature as there is no discovery
issue before the Court (Cagino Affirmation, ¶3). Defendant further
asserts the "demand" is overboard, a fishing expedition, and to the extent
Claimant seeks medical records, Claimant has on two separate occasions viewed
and obtained copies of his medical records (Cagino Affirmation, ¶ 8
and Exhibit A).
At this juncture, the Court, to facilitate moving this claim to trial, directs
that the Defendant accept the "Notice of Motion" as a proper discovery demand.
In doing so, the Court limits its scope to the specific injuries alleged in the
claim and to the period January 5, 2000 through December 31, 2000, dates the
Court has culled from Claimant's submissions. The materials to be produced, if
any, shall exclude copies of the medical records which claimant has viewed and
previously obtained. The Court reasonably expects that this discovery demand,
as converted and limited by the Court, may yield written material in addition to
the medical records previously obtained. Defendant's response shall be filed
and served within forty-five days of the date this decision is filed.
Turning to Claimant's request for a referee, the Court previously denied such a
request (Decision and Order filed August 15, 2001) and Claimant in this
application again offers the Court no reason whatsoever to support such a
request. Accordingly, the Court denies this request.
Lastly, Claimant has moved for summary judgment and sanctions for
non-disclosure. Defendant aptly notes that Claimant's Affidavit in support
(Smith II) is generally more akin to a Reply Affidavit relating to the
issues of disclosure and the appointment of a referee. To the extent the Court
accepts same as a summary judgment motion, it must be denied for two reasons.
The first reason is Claimant is still seeking disclosure in order to establish
his Claim and in the Court's view, summary judgment is inconsistent with the
need for additional discovery. The second reason is that to succeed in a
medical malpractice action, a claimant must demonstrate, typically via expert
medical opinion evidence, that a physician deviated or departed from accepted
practice and that such departure was a proximate cause of injury or damage
(see, e.g., Stuart v Ellis Hosp., 198 AD2d 559, 560-561; Amsler v
Verrilli, 119 AD2d 786, 787; see also, Fiore v Galang, 64 NY2d 999,
1000-1001). The Court alerted Claimant to the need for an expert in its
earlier decision. As the proponent of a summary judgment motion, Claimant is
required to make a prima facie showing of entitlement to judgment as a matter of
law, tendering sufficient evidence to eliminate any material issues of fact from
the case and such showing must be made by producing evidentiary proof in
admissible form (see, Tortorello v Carlin, 260 AD2D 201) As
such, Claimant's attempt to provide medical "proof" in support of his claim for
medical malpractice through his own affidavit (Smith II, ¶¶
4-6) is inadequate to establish Claimant's entitlement to summary judgment.
For the foregoing reasons, Claimant's motions to compel disclosure (M-64141);
to have a referee appointed (M-64201) and for summary judgment and sanctions
(M-64323) are denied in their entirety.