New York State Court of Claims

New York State Court of Claims

BURGESS v. THE STATE OF NEW YORK, #2004-032-024, Claim No. 108393, Motion No. M-67801


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):
Cross-motion number(s):

Claimant's attorney:
Edward Burgess, Pro Se
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney General
By: Michael C. Rizzo, Assistant Attorney General,Of Counsel
Third-party defendant's attorney:

Signature date:
March 22, 2004

Official citation:

Appellate results:

See also (multicaptioned case)


This is a claim for medical malpractice which arose at Franklin Correctional Facility beginning in February 2002. Claimant states that he was seen by a facility doctor and then by a podiatrist in connection with pain he was experiencing in his feet. The specialist recommended that conservative measures be tried first but stated that if they were not successful, surgical intervention might be required. Claimant was then issued corrective insoles, which he used for a period of eight months, but he states that they gave him little or no relief from the pain. He was then told to remove the medical insoles and use regular insoles. The medical staff at Franklin Correctional Facility has refused to make a second referral to a podiatrist, despite the fact that claimant has filed a number of grievances seeking further medical attention for his feet and has appealed the denial of those grievances. Claimant seeks to recover monetary damages for "pain and suffering", "intentional negligence," and "depraved indifference." By this motion, claimant is seeking summary judgment in his favor.

Summary judgment is a drastic remedy that should only be granted when no material and triable issue of fact is presented (Taft v New York City Transit Auth., 193 AD2d 503 [1st Dept 1993], citing Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395 [1957] ). It is the procedural equivalent of a trial (Andre v Pomeroy, 35 NY2d 361[1974]) and should be granted only when it has been established that there is no triable issue (Moskowitz v Garlock, 23 AD2d 943[3d Dept 1965]). The role of the Court, therefore, on a motion for summary judgment is not to resolve material issues of fact, but instead is to determine whether any such issues exist (Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395 [1957]).

If an issue of material fact exists, the motion for summary judgment must be denied. To warrant summary judgment, "there must be only one conclusion that can be drawn from the undisputed facts" (Sanchez v State of New York, 99 NY2d 247, 254[2002]). Consequently, summary judgment is not frequently granted in negligence cases, because such actions typically involve numerous factual questions (Rubin v Reality Fashions, 229 AD2d 1026[4th Dept 1996]), and this expedited procedure is appropriate only where there are no factual issues that must be resolved by a trial (Pencola v Stefanich, 244 AD2d 999[4th Dept 1997]).

To prove an action based on allegations of medical malpractice, the injured party must establish that there was a "deviation or departure from accepted practice" and that "such departure was a proximate cause of injury or damage" (see, Prete v Rafla-Demetrious, 224 AD2d 674, 675[2d Dept 1996]). Liability may not be imposed for honest errors of medical judgment, but is appropriate to assess responsibility if the medical decisions were not based on "intelligent reasoning or upon adequate examination" (Snow v State of New York, 98 AD2d 442, 447 [2d Dept 1983], affd 64 NY2d 745).

With rare exceptions where the facts can be adequately understood by laypersons, expert medical testimony is required to establish a prima facie case of malpractice (Morgan v State of New York, 40 AD2d 891[3d Dept 1972], affd 34 NY2d 709; Wells v State of New York, 228 AD2d 581[2d Dept 1996]; Armstrong v State of New York, 214 AD2d 812[3d Dept 1995]). On a motion for summary judgment, these expert opinions are typically presented in the form of affidavits or affirmations and those documents must contain specific discussion of the medical records, deposition testimony or other evidence, and the expert's opinion must be based on specific facts of the case that are undisputed (Lynn G. v Hugo, 96 NY2d 306 [2001][granting summary judgment where one expert submitted such an affidavit and the other submitted only "unsubstantiated assertions or speculations"]).

Claimant has not presented any medical expert opinion in support of his motion, and consequently he has failed to make out a prima facie case of malpractice or medical negligence. While there may be no dispute as to the treatment that has been provided or withheld from claimant, it is impossible to determine on the submissions now before the Court whether that treatment deviated from the good and accepted standard of care in the relevant community and whether claimant suffered additional harm as a result of that treatment.

Claimant's motion is denied.

March 22, 2004
Albany, New York

Judge of the Court of Claims

The following papers were read on claimant's motion for summary judgment in his favor:
1. Notice of Motion and Supporting Affidavit of Edward Burgess, pro se, with annexed Exhibits and Memorandum of Law

2. Affidavit in Opposition of Michael C. Rizzo, with annexed Exhibits

Filed papers: Claim; Answer