New York State Court of Claims

New York State Court of Claims

McFADDEN v. THE STATE OF NEW YORK, #2004-032-049, Claim No. 103390, Motion No. M-68020


Pro se claimant's motion for summary judgment in an action for medical malpractice is denied, because the pleadings are not attached to the motion papers; the submissions contained in his paper are not proof in admissible form; and, most importantly, because there is no expert opinion to establish a deviation from the standard of care or the causal connection between such deviation and claimant's alleged injuries.

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:
Reginald McFadden, Pro Se
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney General
By: Glenn C. King, Assistant Attorney General,Of Counsel
Third-party defendant's attorney:

Signature date:
June 16, 2004

Official citation:

Appellate results:

See also (multicaptioned case)


This claim alleges that during the period from July 2000 to November 2000, officials at Sullivan Correctional Facility and Clinton Correctional Facility failed to carry out their duty to provide claimant with adequate medical treatment. In support of this motion, claimant recites a number of what he refers to as "Admitted Facts" (McFadden affidavit, ¶2). These facts are supported or evidenced, according to claimant, by prior admissions by defendant and by a series of exhibits that are annexed to his memorandum of law.

Summary judgment is a drastic remedy that should be granted only when there is no outstanding issue of material fact (Redcross v Aetna Cas. & Sur. Co., 260 AD2d 908, 914 [3d Dept 1999], citing to Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). The Court's task has been described as "issue finding, not issue determination," and before judgment can be issued it must be clearly ascertained that there is no triable issue of fact outstanding (In re Hannah UU, 300 AD2d 942. 943 [3d Dept 2002], citing to Matter of Suffolk County Dept. of Soc. Servs. v James M., 83 NY2d 178 [1994] and Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395 [1957]). The threshold to be met is high, as "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]).

Negligence actions, including medical negligence or malpractice claims, are rarely appropriate for resolution by summary judgment, as they typically involve numerous factual issues and require an assessment of whether the defendant's actions were reasonable, which is usually difficult to decide as a matter of law (Davis v Federated Dept. Stores, 227 AD2d 514, 515 [2d Dept 1996]. Moreover, credibility issues cannot be resolved on a motion for summary judgment (Goff v Clarke, 302 AD2d 725, 727 [3d Dept 2003]; see also, Curanovic v New York Cent. Mut. Fire Ins. Co., 307 AD2d 435 [3d Dept 2003]), and "summary judgment is inappropriate where . . . the facts governing the resolution of material issues are within the exclusive knowledge of the moving parties" (Tenkate v Moore, 274 AD2d 934 [3d Dept 2000], citing to Zwart v Town of Wallkill, 192 AD2d 831, 834 [3d Dept 1993]; see also Frame v Mack Markowitz, Inc., 125 AD2d 442, 443 [2d Dept 1986]).

The Court's function in deciding a motion for summary judgment is to determine if an issue exists, and in doing so, the Court must examine the proof in a light most favorable to the party opposing the motion (Iwaszkiewicz v Callanan Indus. Inc., 258 AD2d 776 [3d Dept 1999]). The Court of Appeals has described the process of such a motion:[T]he proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact (Winegrad v New York Univ. Med. Center, 64 NY2d 851, 853; Zuckerman v City of New York, 49 NY2d 557, 562; Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404). Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers (Winegrad v New York Univ. Med. Center, supra, at p 853).

(Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986].) This burden can be met only by the submission of evidentiary proof in admissible form (Rifenburgh v Wilczek, 294 AD2d 653 [3d Dept 2002]; Toomey v Adirondack Surgical Assocs., 280 AD2d 754 [3d Dept 2001]).

Only if the proponent of the motion carries this initial burden is the opposing party required to "lay bare his or her evidence establishing the existence of a genuine triable issue of fact" (Bouchard v Champlain Enterprises Inc., 279 AD2d 935, 937 [3d Dept 2001], citing to Vermette v Kenworth Truck Co., 68 NY2d 714 [1986]; see also Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1067 [1979]). If, however, the party opposing the motion presents enough evidence to establish that it, rather than the proponent, is entitled to judgment as a matter of law, CPLR 3212(b) empowers the Court to grant summary judgment to either party on a motion for summary judgment without the necessity for a cross-motion (see, e.g., Conroy v Swartout, 135 AD2d 945 [3d Dept 1987]).

There are a number of deficiencies in submissions made by claimant in support of his motion. Initially, the Court notes that claimant failed to attach to his notice of motion a copy of the claim and the answer, as expressly required by the statute (CPLR 3212[b]). "[F]ailure to include a copy of the pleadings in the papers supporting a motion for summary judgment ‘require[s] summary denial of the motion' . . . [unless] the record is ‘sufficiently complete'" (Greene v Wood, 6 AD3d 976, [3d Dept 2004], quoting Welton v Drobnicki, 298 AD2d 757 [3d Dept 2002] and General Motors Acceptance Corp. v Albany Water Bd., 187 AD2d 894, 895 [3d Dept 1992]). In Greene (supra), the Third Department affirmed denial of a motion for summary judgment because the moving party failed to include a copy of one of two complaints against it.

In addition, most if not all of the documents attached to claimant's notice of motion are not in admissible form. Those documents that are produced by the medical or administrative staffs of the correctional facilities are not certified, nor is there an affidavit or stipulation establishing their authenticity (CPLR 4518 [c]), and thus they are unacceptable hearsay. Similarly, affidavits from other inmates who have not been cross examined or questioned by defendant cannot be accepted for the truth of the statements made. (See generally, 97 N.Y. Jur. 2d Summary Judgment, etc. § 42; State of New York v Metz, 241 AD2d 192 [1st Dept 1998].)

There is an even more critical problem, however: the absence of any expert opinion evidence. In order to prove a claim of medical malpractice, or negligence in the provision of medical care, a claimant must establish the applicable standard of care to which professionals must adhere in the relevant community, that a deviation from that standard of care occurred (i.e., that the medical professionals involved either did not possess or did not use reasonable care or his or her best judgment in applying the knowledge and skill ordinarily possessed by practitioners in the field), and that the deviation from the standard of care caused the injury suffered by claimant (see,generally, Schrempf v State of New York, 66 NY2d 289 [1985]; Pike v Honsinger, 155 NY 201 [1898]; Hoffman v Pelletier, 6 AD3d 889 [3d Dept 2004]; Schuller v Martinelli, 304 AD2d 967 [3d Dept 2003], lv denied 100 NY2d 509). In almost all instances, this requires the submission of admissible expert proof of both the deviation for the standard of care and the causal connection between the deviation and the injury (Hoffman v Pelletier, supra). A claimant's own medical analysis cannot be considered (Chase v Cayuga Med. Ctr. at Ithaca, 2 AD3d 990, 991 [3d Dept 2003])

The gravamen of the instant claim is that the State's delay in adequately treating claimant's ear condition during the fall of 2000 caused the moderate to severe hearing loss, which was noted when he was examined by an outside consultant in January 2001. It is possible that the period of delay breached the applicable standard of reasonable medical care. It is possible that a delay of the sort experienced here can cause a hearing loss. It may well be that the type of hearing loss suffered by claimant is a type that could be caused by a delay in treatment of an ear infection. Neither claimant nor the Court, however, is in a position to do more than randomly speculate as to whether these things are true. This is not a situation where determination of the reasonableness of defendant's actions and the effect of those actions can be assessed based upon the common everyday experience of the trier of fact, requiring no medical knowledge or special skills (see, Smith v Pasquarella, 201 AD2d 782 [3d Dept 1994]; Miller v Albany Med. Center Hosp., 95 AD2d 977, 978 [3d Dept 1983]).

This claim, in short, is one that cannot be proven without expert opinion to establish that the delay in treatment of claimant's ear infection constituted a deviation from proper and approved medical practices and that deviation was a proximate cause of claimant's hearing loss (see, 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]). It is possible to provide proof of these elements on a motion for summary judgment, but the appropriate supporting documents would include expert opinion in the form of affidavits or affirmations, that contain specific discussion of the medical records, deposition testimony or other evidence and contain conclusions that are based on specific facts of the case that are undisputed (Lynn G. v Hugo, 96 NY2d 306 [2001]). Claimant has submitted no such proof on this motion.

Inasmuch as claimant has failed to make out a prima facie case that he is entitled to judgment in his favor as a matter of law, defendant has no obligation to present any rebuttal evidence.

Claimant's motion is denied.

June 16, 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 Reginald McFadden, pro se, with annexed Memorandum of Law, which includes Exhibits

2. Affirmation in Opposition of Glenn C. King, Esq., AAG

3) Reply to Defendant of Reginald McFadden, pro se

Filed papers: Claim; Answer