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(unpublished opinion); Smith v State of New York, Sise, J., Claim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.
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
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
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.
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.