Defendant brings a motion for summary judgment, primarily asserting that
claimant has failed to disclose a medical expert, and without such an expert, he
will be unable to prove his medical malpractice claim. Claimant opposes the
The claim asserts three causes of action. The first is described as one for
negligence and gross negligence. The second is for medical malpractice. The
third cause of action is for "Future Damages;" however, no new allegations are
made for this cause of action which merely incorporates the allegations of the
previously pled causes of action.
The claim arises from the Department of Correctional Services alleged failure
to provide adequate medical treatment to claimant for a fracture of his right
hand and wrist, while he was an inmate at the Watertown Correctional Facility.
Claimant asserts that he should have had x-rays, orthopedic treatment, and
"various special bone treatments" which were not provided. As a result,
claimant alleges permanent injuries including loss of movement of his hand, loss
of mobility, and serious nerve damage.
Defendant served a demand for disclosure upon claimant, which contained a
demand for expert witness disclosure. Claimant responded to the request for
expert disclosure by advising that it would "be provided at a later date"
(McArdle affirmation ¶6). Defendant argues that claimant has failed to
provide expert disclosure and a certificate of merit; and as a result, the claim
must be dismissed. Defendant notes, that in order to prove a medical
malpractice cause of action, expert testimony is required.
The proponent of a summary judgment motion must make a prima facie showing of
entitlement to judgment as a matter of law, providing sufficient evidence to
eliminate any material issues of fact (
Winegrad v New York University Medical Ctr.,
64 NY2d 851, 853;
Zuckerman v City of New York
, 49 NY2d 557, 562). Here, defendant has
not provided evidence to suggest that the medical personnel at Watertown
Correctional Facility did not commit medical malpractice, or gross negligence
based upon claimant's allegations. Instead, defendant relies on claimant's
failure to provide expert disclosure as proof of his inability to establish
medical malpractice; thereby, in defendant's opinion, warranting the Court
granting summary judgment. This position is flawed. Defendant ignores its
burden to establish its entitlement to summary judgment. It has not met that
burden. What defendant really seeks is preclusion; however at this juncture,
based upon the proof before the Court, even that request would be denied.
First, there is no requirement that a
claimant provide a certificate of merit (CPLR 3012-a [f]).
Secondly, there is no statutory time frame for providing expert disclosure, nor
any order for discovery imposing a time frame for disclosure; claimant still has
time to retain an expert and provide the necessary information. No trial date
has been set. The failure of claimant to have retained or provided expert
disclosure at this juncture does not entitle defendant to preclusion or, as a
result, summary judgment. Although claimant's cause of action for gross
negligence is more tenuous, accepting the allegations in the claim as true,
defendant has not established that the allegations of wrongdoing contained in
the claim do not rise to the level of gross negligence.
The Court will dismiss claimant's cause of action for ordinary negligence. For
this cause of action, defendant has met its burden by providing a copy of the
claim and claimant's bill of particulars. The assertions of wrongdoing in
claimant's bill of particulars indicate that the culpable conduct claimant is
complaining about includes, "1. Lack of appropriate treatment. 2. Failed to
diagnose an injury as a fracture and thereafter treat properly" (Exhibit G of
defendant's moving documents page 3, ¶ 22). Earlier references provide
that claimant's two bone fractures still have not been properly treated (Exhibit
G of defendant's moving documents page 2, ¶ 8[b]). Accepting these
allegations as true, they involve medical treatment or bear a substantial
relationship to the rendition of medical treatment by the medical staff at
Watertown Correctional Facility thus sounding in medical malpractice and not
ordinary negligence (
Scott v Uljanov,
74 NY2d 673, 675). There are no allegations which would
fall within an ordinary negligence cause of action.
Defendant has also met its burden for claimant's third cause of action for
"future damages." This cause of action also must be dismissed in that there
are no new allegations asserted and there is no such separate cause of action
recognized in this State.
By this motion defendant also seeks dismissal of the claim against all named
parties, other than the State of New York. Defendant, correctly points out that
the only proper party is the State of New York.
Accordingly, based upon the foregoing, defendant's motion is GRANTED IN PART.
The Court will amend the caption to reflect only the State of New York as
defendant. Summary judgment is granted dismissing claimant's cause of action
for ordinary negligence and the third cause of action for "future damages."
The balance of defendant's motion, is DENIED.
The Court considered the following documents in deciding this motion:
Affirmation of Edward F. McArdle, Esquire, Assistant Attorney
General, in support, with exhibits attached
Defendant's Memorandum of Law in support of
Reply of Dionisio Crespo, Pro Se, in opposition, with exhibits