New York State Court of Claims

New York State Court of Claims

SMITH v. THE STATE OF NEW YORK, # 2002-028- 072, Claim No. 103396, Motion Nos. M-65090, M-65198, M-65254, M-65315


State's Motion for Summary Judgment granted. Claimant failed to establish additional discovery was necessary to oppose summary judgment motion. Rather Claimant needed a medical expert.

Case Information

2002-028- 072
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
M-65090, M-65198, M-65254, M-65315
Cross-motion number(s):

Claimant's attorney:
Defendant's attorney:
BY: Paul F. Cagino, Esq. Assistant Attorney General
Third-party defendant's attorney:

Signature date:
December 23, 2002

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read on the motions presently before the Court:


1) Notice of Motion and Supporting Affidavit of Assistant Attorney General Paul F. Cagino, filed April 25, 2002, with annexed Exhibits A-B[1] (Cagino Affidavit)

2) "Reply Motion" in Opposition of Preston A. Smith, filed April 29, 2002 (Smith Opposition)

3) Letter from Preston A. Smith, received May 3, 2002 (Smith Letter)


4) Motion to Depose and Subpoena of Preston A. Smith, filed May 15, 2002 (Claimant's M-65198)

5) Affirmation in Opposition of Assistant Attorney General Paul F. Cagino, filed June 12, 2002 (M-65198 Opposition)


6) Motion for Examination Before Trial by Preston A. Smith, filed May 23, 2002 (Claimant's M-65254)

7) Affirmation in Opposition of Assistant Attorney General Paul F. Cagino, filed June 12, 2002 (M-65254/M-65315 Opposition)


8) Motion for Examination Before Trial by Preston A. Smith, filed May 31, 2002 (Claimant's M-65315)

Filed Papers: Claim, filed November 15, 2000; Answer, filed December 13, 2000; Decision and Order, Smith v State of New York, Sise, J., Claim No. 103396, Motion Nos. M-64141, M-64201, and M-64323, filed January 25, 2002 (unpublished opinion); Smith v State of New York, Sise, J., Claim No. 103396, UID#2001-028-0548, Motion No. M-63731, filed August 15, 2001; Smith v State of New York, Sise, J., Claim No. 103396, UID#2001-028-0535, Motion No. M-63231, filed June 21, 2001.

The Court, from prior motion practice, is familiar with the facts and circumstances underlying the instant Claim in which Claimant has alleged that the Defendant has failed to provide adequate medical treatment for his knees and shoulders between the period January 5, 2000 through November 15, 2000. Specifically, Claimant alleges that the State denied him continued physical therapy for his shoulder, a proper knee brace, and the prescribed medications (Claim, ¶2). At all times relevant to this Claim, Claimant was under the care and custody of the Department of Correctional Services (DOCS). Subsequent to the filing of the State's summary judgment motion, Claimant made three separate motions (M-65315, M-65198 and M-65254) for a variety of discovery and disclosure relief, which the Court adjourned, together with the summary judgment motion (M-65090) to a single return date for consideration.

Claimant's Motions

Pursuant to CPLR 3107 and 3106(b), Claimant seeks permission to depose and subpoena "defendants" and witnesses to this claim ( M-65198). Claimant has listed several DOCS medical personnel he wishes to depose in order to obtain information regarding medical reports and memorandums written about the Claimant.[2] Additionally, Claimant seeks permission to depose two inmate witnesses. Defendant has opposed the motion asserting, inter alia, that Claimant has not provided a specific purpose, special circumstance, or any other rationale for deposing the people listed and Claimant already has possession of, or can obtain, all the medical records or memorandums that are listed in Claimant's motion (M-65198 Opposition, ¶ ¶ 5 and 6).

In Motion No. M-65254, filed May 23, 2002, Claimant requests a medical examination of himself, specifically focusing on the ligaments of Claimant's knees (Claimant's M-65254). In Motion No. M-65315, Claimant requests permission for a deposition of himself and Dr. Chaloner, one of Claimant's treating physicians (Claimant's M-65315). Additionally, M-65315 requests that Claimant and Dr. Chaloner be given a mental and physical examination prior to trial (Claimant's M-65315). Defendant opposes both motions asserting there is no basis for the requested examinations (M-65254/M-65315 Opposition, ¶ 3).

At the outset, it should be noted that Claimant has failed to file a Notice of Motion for any of the current motions before the Court and on that basis alone the motions are denied

(CPLR 2214(a) and Uniform Rules for the Court of Claims, 22 NYCRR §§ 206.8, 206.9). Claimant was previously advised by the Court of the proper procedures for bringing a motion on before the Court (see, Smith v State of New York, Sise, J., Claim No. 103396, UID#2001-028-0548, Motion No. M-63731, filed August 15, 2001) and has chosen to ignore same to his detriment.

Assuming arguendo, the Court were to consider the merits of Claimant's motions, the motions for additional discovery and disclosure would seem to suggest that Defendant's motion for summary judgment is inappropriate. However, there is no basis for Claimant's requests to compel either a physical or psychiatric [referred to as "mental" by Claimant] examination of himself or Dr. Chaloner. Moreover, given that Claimant has obtained or been provided with the various documents and medical records, and Claimant's stated purposes (see, footnote 2, supra), the Court in this instance declines to exercise its discretion to order the requested examinations before trial. In the Court's view, Claimant has failed to offer any evidentiary basis to support a claim that "facts essential to justify opposition [to the State's motion for summary judgment] may exist but [could not] then be stated" (CPLR 3212 [f]; see, Harris v Alcan Aluminum Corp., 91 AD2d 830, affd 58 NY2d 1036) and that further disclosure is warranted. Rather, Claimant's current various and sundry requests will not provide Claimant with that which he needs to oppose this motion, namely a medical expert who will opine that the Defendant's care and treatment of Claimant deviated from the standard of care and that such deviation was the proximate cause of his injuries. On two prior occasions, this Court has explicitly alerted Claimant to the need for a medical expert (see, Smith v State of New York, Sise, J., Claim No. 103396, Motion Nos. M-64141, M-64201, and M-64323, filed January 25, 2002 [unpublished opinion] at p.3). Accordingly, Claimant's motions would be denied for the foregoing reasons.

Defendant's Motion

The Court now turns to the Defendant's motion for summary judgment.

As the proponent of a motion for summary judgment, the movant must establish an entitlement to judgment as a matter of law by producing evidence demonstrating the absence of any genuine issues of fact (see, Alvarez v Prospect Hosp., 68 NY2d 320, 324; Shay v Palombaro, 229 AD2d 697, 699). The evidence produced by the movant must be viewed in the light most favorable to the nonmovant, affording the nonmovant every favorable inference (see, Rizk v Cohen, 73 NY2d 98, 103). Only after the movant has made this prima facie showing does the burden shift to the party opposing the motion to produce evidence showing the existence of material issues of fact which would require a trial (see, Alvarez v Prospect Hosp., supra, at 324). "[R]egardless of the sufficiency of the opposing papers", in the absence of admissible evidence sufficient to preclude any material issue of fact, summary judgment is unavailable (Ayotte v Gervasio, 81 NY2d 1062, 1063, quoting Alvarez v Prospect Hosp., 68 NY2d 320, 324). In medical malpractice actions, Defendant's burden on a motion for summary judgment can be met by submission of affidavits and/or deposition testimony and medical records which rebut claimant's claim of malpractice with factual proof (see, Horth v Mansur, 243 AD2d 1041, 1042).

In support of the motion, Defendant has submitted a portion of Claimant's medical records (see, Cagino Affidavit, Exhibit A) along with the affidavit of Dr. Robert G. Chaloner, Defendant's Health Services Director at Coxsackie Correctional Facility and one of Claimant's treating physicians. The medical records offered in support of the instant motion establish that Claimant was provided with physical therapy, Naprosyn, an analgesic balm, and was seen by medical personnel on numerous occasions during the relevant period. Dr. Chaloner's affidavit, based upon his treatment of the Claimant and a review of the medical records, explained the basis for the services provided to Claimant and established that such care and treatment was appropriate given Claimant's medical status. This included the diagnosis of Claimant's shoulder injury and the extent of necessary physical therapy. Dr. Chaloner averred that certain items, such as the knee braces, were provided to Claimant even though they were not medically necessary. Dr. Chaloner concluded his affidavit by averring that " [t]here was no deviation of acceptable medical care as alleged " by the Claimant (Chaloner Affidavit ¶ 12).

The Court finds that this evidence persuasively refutes each of Claimant's allegations of improper treatment and the denial of medications (see, Toomey v Adirondack Surgical Assocs. P.C., 280 AD2d 754 [treating physician's affidavit may be sufficient to establish entitlement to summary judgment]), thus shifting the burden to Claimant to come forward with competent medical evidence to rebut defendant's prima facie showing by establishing a departure from accepted medical practice, as well as a nexus between the alleged malpractice and Claimant's injury (see, Rossi v Arnot Ogden Med. Ctr., 268 AD2d 916, 917).

Claimant's opposition papers consist of reaffirmations of his contentions that he was provided inadequate medical care. However, Claimant's unsubstantiated assertions that he was denied medications and treatment, in the face of the medical records to the contrary, are insufficient to raise a triable question of fact (see, Alvarez v Prospect Hosp., supra, at 325 [conclusory allegations of medical malpractice, unsupported by evidence, are insufficient to defeat a motion for summary judgment] ). Claimant's observation that he was provided medical treatment on fifteen occasions that are not addressed in Defendant's Exhibit A (see, Smith Letter, ¶ 1[A-P]) does not assist him in raising a triable issue of fact. Absent from the record is a competent medical opinion that the Defendant or any of its employees or agents were guilty of malpractice (Conti by Conti v Albany Medical Center Hosp., 159 AD2d 772, 775). Claimant's opposition neither establishes the acceptable standard of care from which the State deviated (see, Angell v State of New York, 278 AD2d 776), nor does it raise a material question of fact warranting a trial.

Accordingly, the Court finds the Defendant is entitled to summary judgment dismissing the Claim.
Motion No. M- 65090 is GRANTED.

Motion Nos. M-65198, M-65254 and M-65315 are DENIED.

December 23, 2002
Albany, New York

Judge of the Court of Claims

[1] The affidavit of Dr. Robert G. Chaloner is annexed as Exhibit B to the moving papers. For clarity, the Court will refer to it as the "Chaloner Affidavit".
[2] Claimant has requested permission to subpoena and depose: Dr. John Alves about a 10/26/00 radiology report; Dr. Jean Kirk in regards to a report about Claimant's knees; Dr. Dave Blaser in regards to an x-ray ordered 11/18/87, done on 11/20/87of Claimant's shoulder; Dr. C.J. Riggio; Dr. Chaloner about a report dated 3/3/00 and discontinuance of physical therapy; T. Clark about a Patient Referral Form, dated 3/30/00; P. Franklin (a DOCS nurse) and A. Cole (Deputy Superintendent of Health Services) about their memorandums; and inmates Desmond Grant and Juan Nunez (see, Claimant's M-65198).