New York State Court of Claims

New York State Court of Claims

UPFOLD v. THE STATE OF NEW YORK, #2004-031-019, Claim No. 107644, Motion Nos. M-66834, M-67560, CM-66994


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):
M-66834, M-67560
Cross-motion number(s):
Claimant's attorney:
Defendant's attorney:
New York State Attorney General
BY: THOMAS G. RAMSAY, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
March 31, 2004

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read on motions by Claimant to strike certain affirmative defenses and for a protective order, and on Defendant's motion for summary judgment:
1) Claimant's Notice of Motion (M-66834), filed May 20, 2003;
2) Claimant's Affidavit, sworn to May 15, 2003, with attached exhibits;
  1. Defendant's Notice of Cross-Motion (CM-66994), filed June 20, 2003;
  2. Affirmation of Thomas G. Ramsay, Esq., affirmed June 18, 2003;
5) Affirmation of Reginald Sutton, M.D., affirmed June 18, 2003, with attached exhibits;
6) Claimant's Notice of Motion (M-67560), filed October 23, 2003;
7) Claimant's Affidavit, sworn to October 15, 2003;
  1. Claimant's Affidavit (denominated affirmation) sworn to October 15, 2003, with attached exhibits;
9) Affirmation of Thomas G. Ramsay, Esq., affirmed October 20, 2003;
10) Reply Affirmation of Thomas G. Ramsay, Esq., affirmed October 20, 2003;
11) Filed Papers: Claim; Verified Answer. Claimant has filed two motions. The first (M-66834) requests that the Court strike certain affirmative defenses asserted in Defendant's Verified Answer. With his second motion (M-67560), Claimant requests that I issue an order preventing Defendant from contacting Claimant's proposed expert witness in this matter, or any of this expert's coworkers. In response to Claimant's first motion, Defendant brings a cross-motion for summary judgment and dismissal of the claim.

The underlying claim in this matter, filed on April 21, 2003, alleges that Claimant was transferred from Groveland Correctional Facility to Livingston Correctional Facility ("Livingston") on January 9, 2003. The transfer apparently related to Claimant's having been sentenced to serve time in the Special Housing Unit ("SHU") after a disciplinary hearing. According to Claimant, he was sent to Livingston to serve his disciplinary sentence. In his claim, Mr. Upfold alleges that between January 8 and January 21, 2003, he was denied the prescription medication Prevacid. Claimant contends that, despite his continued complaints regarding his immediate need for this medication, Defendant's employees refused his requests to obtain this medication for him. Claimant alleges that, due to Defendant's failure to promptly refill his Prevacid prescription, he suffered difficulty and pain in swallowing. These problems grew worse until, on February 27, 2003, Claimant was forced to undergo a surgical procedure to dilate his esophagus. Claimant alleges that the Prevacid would have prevented the necessity of this procedure. He alleges both medical neglect (negligence) and medical malpractice. Additionally, it appears that Claimant intended to allege a cause of action for illegal confinement relating to the disciplinary matter for which he was confined in SHU. Claimant offers no specific allegations relating to this proposed cause of action other than to say that the disciplinary determination was overturned administratively on appeal.


I will first address Defendant's cross-motion for summary judgment, as this cross-motion might affect the outcome, or render moot, Claimant's two non-dispositive motions. Initially, I note that, in any application for summary judgment, the moving party bears the heavy burden of establishing that he or she is entitled to judgment as a matter of law. That party must tender evidence sufficient to demonstrate the absence of any material issues of fact (Andre v Pomeroy, 35 NY2d 361; Winegrad v New York Univ. Med. Center, 64 NY2d 851, 853). Further, the evidence submitted must be viewed in the way which most benefits the non-moving party (see Robinson v Strong Memorial Hospital, 98 AD2d 976 [4th Dept 1983]).

Defendant, through the affirmation of Reginald Sutton, M. D., a licensed physician, posits that Defendant's alleged denial of medication to Claimant did not, in fact, occur and furthermore that, even if it did, it was not causally related to Claimant's subsequent medical procedure. Starting with a clarification of Claimant's alleged surgery, Dr. Sutton points out that the procedure was not, in fact, surgery but an upper endoscopy. This procedure was performed on the Claimant relating to his pre-existing condition identified as an esophageal stricture. Dr. Sutton points out that Claimant had undergone this procedure at least twice in the six months prior to the period at issue in this matter, and that "[e]ven with his medication at all times, he would still have required the endoscopy procedure in order to treat his chronic, pre-existing condition" (Sutton Affirmation para. 9). In fact, Dr. Sutton points out that Claimant was on Prevacid at the time of the previous procedures, yet this did not affect Claimant's need for the procedure. Dr. Sutton further explains that Prevacid is a medication that is prescribed to prevent reflux esophagitis. Both parties agree that the upper endoscopy performed by Dr. Abdul Chaudhry (Claimant's own proposed expert) demonstrated that there was no indication that Claimant suffered from reflux esophogitis at the time of his February 27, 2003 procedure. Dr. Sutton opines that this fact clearly indicates that Claimant's esophageal stricture and subsequent need for an upper endoscopy were not caused by reflux esophagitis and, therefore, were not related to the alleged denial of Prevacid.

Further, Dr. Sutton points out that Claimant was not denied Prevacid during the period in question. Not, at least, by any agents of Defendant. According to Dr. Sutton, Defendant's medical records demonstrate that Claimant refused to take his Prevacid on January 10, 2003 (exhibit A). The records indicate that Claimant did not request a refill on his Prevacid until January 15, 2003, and this prescription was filled on that very same day (exhibits B and C). Based upon these documents and Dr. Sutton's evaluation thereof, Defendant asserts that, despite Claimant's allegations, he was not, in fact, ever denied his medication.

In his response, Claimant points out that, contrary to Dr. Sutton's contention, he was not taking Prevacid when he underwent the two previous endoscopies, but rather had been taking Zantac. It is unclear from the documents before me whether or not this distinction is material. It may be that Zantac and Prevacid are, for all practical purposes, interchangeable, as they relate to Claimant's condition. However, without expert guidance on this issue, I am uncomfortable making this assumption.

More importantly, Claimant argues that he was not taking Prevacid to prevent reflux esophagitis, which he admits he did not have at the time he underwent his February 27, 2003 upper endoscopy. Rather, Claimant asserts that the Prevacid was supposed to prevent the problems associated with his esophageal stricture and to prevent the recurrence of the need to undergo further upper endoscopy procedures.

I find this issue troubling. Although Defendant's submission indicates that Prevacid is a medication prescribed for reflux esophagitis, and that this condition was not present at the time the upper endoscopy was performed, Defendant does not state that the Prevacid is not also used to treat an esophageal stricture. It may be the case that reflux esophagitis is a potential cause of an esophageal stricture and that Claimant was prescribed Prevacid in light of this possibility. It would then follow that the lack of evidence of reflux esophagitis at the time the upper endoscopy was performed ruled this possibility out, thereby making Claimant's failure to take Prevacid, either because he refused it, or because it was not supplied to him, irrelevant. I am uncomfortable, however, making this assumption without the guidance of an expert medical opinion. Although Defendant's expert's submission leads me to the very threshold of this conclusion, it falls just short of providing me the information necessary to cross over that threshold.

For these reasons, I find that Dr. Sutton's affirmation does not constitute the requisite expert medical opinion evidence necessary to establish a lack of merit to this claim (see Conti v Albany Medical Center Hosp., 159 AD2d 772; Lynn G. v Hugo, 96 NY2d 306). As the deficiencies noted in Defendant's proof are potentially matters that can be easily addressed in the future, I deny Defendant's motion for summary judgment concerning Claimant's medical malpractice and medical neglect causes of action without prejudice.

Finally, I note that Defendant, while requesting dismissal of the entire claim, has not directly addressed Claimant's allegation that he was wrongfully confined. I find that this relates more to the failure of Claimant to allege any facts which could possibly support such a claim, than on any oversight on the part of Defendant. Claimant alleged merely that he was confined and that his disciplinary determination was administratively reversed. The actions of prison personnel involving inmate disciplinary matters are generally quasi-judicial and, unless they exceed the scope of their authority or violate applicable rules, are afforded absolute immunity (Arteaga v State of New York, 72 NY2d 212; Davis v State of New York, 262 AD2d 887, lv denied 93 NY2d 819). The fact that the disposition from a disciplinary hearing is later reversed does not necessarily remove the matter from the blanket of immunity (Arteaga v State of New York, supra; Bonacorsa v State of New York, Ct Cl, May 31, 1994 [Claim No. 86522], Bell, J.). Claimant has failed to allege any specifics concerning why he was confined or why the determination was overturned. He has failed to allege any fact from which it could be inferred that Defendant violated any of its own rules concerning disciplinary hearings or appeals. For this reason, he has failed to state a valid cause of action for illegal confinement, and this cause of action must be dismissed.
As stated above, Claimant has filed two motions. The first requests that the Court strike certain affirmative defenses asserted by Defendant in its verified answer. In response, Defendant has conceded that, since the Verified Answer was filed, it has determined that its Fifth affirmative defense, relating to Claimant's failure to properly file the claim, is no longer appropriate. Defendant has agreed to withdraw this affirmative defense. Defendant argues, however, that each of its remaining affirmative defenses are appropriate and properly asserted. I agree.

The Claimant, as the moving party, bears the burden of coming forward with sufficient proof to demonstrate that the defenses at issue cannot be maintained (Arquette v State of New York, 190 Misc 2d 676) and a court should not strike a defense when material issues of fact remain unresolved (Harrison v State of New York, 262 AD2d 833; Connelly v Warner, 248 AD2d 941). Claimant has failed to come forward with sufficient proof that the subject affirmative defenses cannot be maintained. While his pleading may be strong enough to withstand, at this point a motion to dismiss, it is not so strong as to demonstrate that the affirmative defenses are improperly asserted.

Additionally, pursuant to CPLR 3024 [b] "[a] party may move to strike any scandalous or prejudicial matter unnecessarily inserted in a pleading." Each of the affirmative defenses at issue are standard and not the slightest bit inflammatory. Affirmative defenses are not dispositive of a claim and are merely assertions of a party which, absent prejudice, should not be stricken. (CPLR 3024; 5 Weinstein-Korn-Miller, NY Civ Prac ¶ 3018.14). I find that these affirmative defenses are not prejudicial or scandalous in any respect. The State properly asserted these affirmative defenses in its Verified Answer.

With his second motion, Claimant requests that the Court prohibit Defendant from contacting Dr. Chaudhry, or anyone associated with Dr. Chaudhry. Claimant apparently intends to use Dr. Chaudhry as his expert witness in this matter. Dr. Chaudhry is also one of Claimant's treating physicians. I find Claimant's request to be without merit (see e.g. Luce v State of New York, 266 AD2d 877).

Accordingly, it is hereby

ORDERED, that Defendant's motion for summary judgment is granted in part in that Claimant's cause of action for illegal confinement is dismissed. The remaining portions of Defendant's cross-motion are denied without prejudice. And it is further

ORDERED, that Claimant's motion to strike certain affirmative defenses is granted in part, in that Defendant's Fifth affirmative defense is hereby stricken. The remaining portions of this motion are denied. And it is further,

ORDERED, that Claimant's motion for an order of protection preventing Defendant from contacting Claimant's proposed expert witness is denied.

March 31, 2004
Rochester, New York

Judge of the Court of Claims