New York State Court of Claims

New York State Court of Claims

GREEN v. THE STATE OF NEW YORK, #2004-032-063, Claim No. 101171, Motion No. M-68424


Pro se inmate's motion for summary judgment is denied and, on the basis of the evidence provided by defendant, summary judgment in favor of defendant is awarded, dismissing the claim. Warning given re: excessive number of motions.

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:
Shawn Green, Pro Se
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney General
By: Kevan J. Acton, Assistant Attorney General,Of Counsel
Third-party defendant's attorney:

Signature date:
September 14, 2004

Official citation:

Appellate results:

See also (multicaptioned case)


The instant claim[1] is based on allegations that when claimant arrived at Upstate Correctional Facility on July 20, 1999, the medical staff at that facility "would not return claimant[‘s] medication," and he further alleges that his medication and treatment were discontinued "without an examination or diagnosis" (amended claim, 1st paragraph). In the affidavit supporting this motion for summary judgment, claimant also adds that he was informed on July 30, 1999 by Nurse Adams that pursuant to facility policy no nasal spray is issued to level 1 inmates (Green affidavit, ¶8). Finally, he alleges that this delay in treatment caused him to undergo sinus surgery at Albany Medical Center over a year later, in February 5, 2001 (id., ¶¶10,11).

In opposition to the motion, defendant has submitted the signed, notarized affidavit of Debbie Adams, R.N., who was employed at Upstate Correctional Facility in July 1999. She has annexed several pages of claimant's ambulatory medical record in which she made entries relating to claimant's treatment. These entries record claimant's repeated request for nasal spray. Nurse Adams states that the rule in force at Upstate at that time was that Level I inmates (a group that included claimant) were not permitted any glass or plastic medication containers in their cells and, in addition, she states that, pursuant to departmental policy, that the medical needs of an inmate newly transferred into the facility must be evaluated to determine if previously prescribed medication was still needed. A physician examined claimant on August 5, 1999 and he requested that an x-ray be performed. Once an x-ray had been taken and a diagnosis of chronic sinusitis confirmed, the nasal spray was prescribed. In the interim, on at least one occasion, claimant refused alternative medication (Sudafed) that was offered to him.

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 (Matter of Hannah UU, (Genevieve VV), 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].

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: The 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).

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 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 the submissions made by claimant in support of his motion. He 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, 977 [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.

Substantively, claimant provides no evidence other than his affidavit and his reply affidavit in support of his motion. Although he alludes to statements made in response to certain of his discovery demands, he has not submitted copies of those statements in his papers. Most significantly, he does not include any medical evidence to support his claim that he needed the nasal spray and/or that not having it led to permanent problems that later required surgery.

Defendant, on the other hand, has submitted a statement from a facility employee with personal knowledge of both claimant's treatment and the policies regarding the dispensing of medication at Upstate Correctional Facility. In the Court's view, this is sufficient evidence to establish that defendant, rather than claimant, is entitled to judgment as a matter of law.

Pursuant to CPLR 3212(b), claimant's motion for summary judgment is denied and summary judgment is granted in favor of defendant, dismissing Claim No. 101171.

September 14, 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 Shawn Green, pro se

2. Affirmation in Opposition of Kevan J. Acton, Esq., AAG

3. Reply Affidavit of Shawn Green, pro se

4. Affidavit of Debbie Adams, R.N., submitted by defendant

Filed papers: Claim; Answer

[1]The Court notes that this is the eighth motion that has been brought in this action. Claimant has moved to strike certain affirmative defenses (Motion No. M-60998), to reargue the denial of Motion M-60998 (Motion No. M-61672), to depose a non-party witness (Motion No. M-62554), to reargue the denial of Motion No. M-62554 (Motion No. M-63209), and to amend the claim (Motion No. M-63110). Defendant has moved to dismiss claimant's amended claim (Motion No. M-62628) and for a protective order with respect to certain interrogatories (Motion No. M-63807). With the exception of defendant's motion to dismiss the amended claim, all of these motions have been denied. It is further noted that, in connection with the thirty claims he has commenced in the Court of Claims, claimant has brought a total of 100 motions. The Court repeats the observation made in another, somewhat similar context:
It is well established that limitations on the right to access the courts may be appropriate when it becomes clear that the courts are being used as a vehicle of harassment by a litigant, even if the litigant is appearing pro se (see, 67A NY Jur 2d, Injunction §125, Avoidance of Vexatious or Oppressive Litigation and cases cited therein). Limiting vexatious or oppressive discovery is far less of an intrusion on a citizen's right to access the courts, but it can play an equally important role in conserving both litigant and judicial resources and in the orderly process of the Court.
(McFadden v State of New York, UID #2003-032-070, Claim Nos. 103390, et al., Motion Nos. M-66233, et al., June 30, 2003, Hard, J., see also Moore v State of New York, UID #2001-028-0511, Claim No. 100767, Motion Nos. M-62452, M-62790, M-62814, January 16, 2001, Sise, J.)