New York State Court of Claims

New York State Court of Claims

VENTICINQUE v. THE STATE OF NEW YORK, #2004-031-044, Claim No. 106698, Motion Nos. M-67239, M-67567


Synopsis


Case Information

UID:
2004-031-044
Claimant(s):
RONALD J. VENTICINQUE
Claimant short name:
VENTICINQUE
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
106698
Motion number(s):
M-67239, M-67567
Cross-motion number(s):

Judge:
RENÉE FORGENSI MINARIK
Claimant's attorney:
RONALD J. VENTICINQUE, PRO SE
Defendant's attorney:
HON. ELIOT SPITZER
New York State Attorney General
BY: HEATHER R. RUBINSTEIN, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
May 11, 2004
City:
Rochester
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers, numbered 1 to 8, were read on two motions by Claimant for partial summary judgment on liability:
1. Claimant's Notice of Motion (M-67239), filed August 11, 2003;
2. Claimant's unsworn statement, dated July 30, 2003, with attached exhibits;
3. Claimant's unsworn statement, dated September 22, 2003;
4. Affirmation of Heather R. Rubinstein, Esq., dated October 9, 2003;
5. Affidavit of Susan Lennox, sworn to October, 8, 2003;
6. Claimant's Notice of Motion (M-67567), filed October 24, 2003;
7. Claimant's unsworn statement, dated October 17, 2003, with attached exhibits;
8. Filed documents: Claim and Verified Answer. In this action,Claimant alleges, among other things, that over his objections, he was given a tuberculosis screening test at Auburn Correctional Facility ("Auburn") on August 5, 2002. He alleges that, despite his notice to Defendant that he had adverse reactions to such tests, the test was given and he did indeed suffer severe adverse reactions. These allegedly included: cramps, nausea, disturbances in his vision, pain in his chest, headaches and sleeplessness. With each of his current motions, Claimant seeks partial summary judgment on the issue of liability, asserting that there is no question of fact as to Defendant's negligence and the injuries he suffered as a result.

Defendant opposes Claimant's motion, arguing that there is a question of fact as to whether or not Claimant gave prior notice to Defendant of his adverse reactions to such screening tests, and whether or not Defendant's negligence was the proximate cause of Claimant's alleged injuries. In support of this assertion, Defendant has submitted the affidavit of Registered Nurse Susan Lennox, which indicates that the Claimant's medical records fail to indicate that Claimant gave such prior notice to any Auburn medical personnel.

In any application for summary judgment, the moving party bears a heavy burden of establishing that he or she is entitled to judgment as a matter of law, tendering sufficient evidence 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). Summary judgment is a drastic remedy which deprives a party of its day in court and should not be granted where there is any doubt as to the existence of a material issue of fact (Moskowitz v Garlock, 23 AD2d 943; Epstein v Scally, 99 AD2d 713). Claimant has failed to meet this burden. I find that questions of fact exist as to whether Claimant gave prior notice of his adverse reaction to the tuberculosis screening test, as well as whether Defendant's alleged negligence (giving Claimant the screening test) was the proximate cause of Claimant's alleged injuries.

Based upon the foregoing it is:

ORDERED, that Claimant's motions for summary judgment are denied.

May 11, 2004
Rochester, New York

HON. RENÉE FORGENSI MINARIK
Judge of the Court of Claims