New York State Court of Claims

New York State Court of Claims

PARRA v. THE STATE OF NEW YORK, #2004-032-064, Claim No. 108188, Motion No. M-68416


Pro se claimant's motion for summary judgment in his medical malpractice action is denied because he failed to provide an expert opinion to establish a deviation from the standard of care or a causal connection between such deviation and claimant's injuries. If, however, claimant's motion was actually for leave to amend his claim, then it is denied because of his failure to submit an affidavit or other support or explanation of the need for and purpose of an amendment.

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:
Edwin Parra, Pro Se
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney General
By: Saul Aronson, Assistant Attorney General,Of Counsel
Third-party defendant's attorney:

Signature date:
September 17, 2004

Official citation:

Appellate results:

See also (multicaptioned case)


On June 7, 2002, claimant was allegedly slashed with a razor by another inmate at Clinton Correctional Facility ("Clinton"), resulting in a cut on his face and neck. According to the claim, a physician at Clinton suggested treatment and prescribed certain ointments to help minimize scarring. Before this treatment could be implemented, claimant states, he was transferred to Upstate Correctional Facility ("Upstate"), where the medical staff neglected to comply with the treatment prescribed at Clinton and allegedly failed to provide claimant with adequate medical care. Claimant now brings this motion styled as a motion for summary judgment. In support, claimant attaches to his motion papers an amended claim with exhibits.

Summary judgment is a drastic remedy that should only be granted when there are no outstanding issues of fact (Redcross v Aetna Cas. & Sur. Co., 260 AD2d 908, 913-914 [3d Dept 1999], citing to Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). The Court's task is "issue finding, not issue determination," and before judgment can be granted it must be clearly ascertained that there are no triable issues of fact outstanding (Matter of 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, 182 [1994] and Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395 [1957]).

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 (Davis v Federated Dept. Stores, 227 AD2d 514, 515 [2d Dept 1996]). 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]).

In order to fulfill the Court's function in deciding a motion for summary judgment, the proof must be examined in a light most favorable to the party opposing the motion (Iwaszkiewicz v Callanan Indus. Inc., 258 AD2d 776 [3d Dept 1999]). The moving party must make a prima facie showing of entitlement to judgment as a matter of law, proffering sufficient evidence to demonstrate the absence of any material issues of fact (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957]). This burden of proof can only be met 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]).

There are numerous deficiencies in the submissions made by claimant in support of his motion. He has failed to attach to his notice of motion a copy of the claim and the answer, as expressly required by 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, 6AD3d 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.

Claimant has also failed to attach an affidavit by a person with knowledge reciting the material facts and showing how there is no defense to the cause of action and to proffer evidence in admissible form as required by CPLR 3212(b), to establish entitlement to judgment in his favor as a matter of law. Moreover, claimant has failed to attach to his motion papers expert opinion evidence to establish a deviation from the standard of care to which medical professionals must adhere in the community or to establish that any such deviation caused or contributed to the injuries he allegedly suffered (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 [2003]). Such expert opinion evidence is necessary here because the medical consequences of an alleged failure to treat and/or to apply the ointment to the slash scar are not within the ordinary knowledge of the trier of fact (id. at 968; Morgan v State of New York, 40 AD2d 891 [3d Dept 1972], affd 34 NY2d 709 [1974]; Wells v State of New York, 228 AD2d 581 [2d Dept 1996]; Armstrong v State of New York, 214 AD2d 812 [3d Dept 1995]). Claimant has submitted no such expert opinion evidence.

Insomuch 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 for summary judgment is denied.

Claimant did annex an amended claim to his papers. Unfortunately, he neither moved for nor received permission of this Court to file an amended claim pursuant to CPLR 3025(b). The Court would be remiss, however, if it failed to address the possibility that claimant was actually moving for leave to amend his claim in spite of styling the motion as one for summary judgment. This possibility is supported by the enclosure of an amended claim with claimant's motion papers and by the fact that in February of 2004, shortly before this motion was filed, claimant wrote to the Chief Clerk of the Court of Claims, requesting permission to amend his claim because he had obtained "documentary evidence" to support his claim (presumably the 27 pages comprising Exhibits A through G). At that time, claimant was advised that he would have to bring a motion pursuant to 22 NYCRR 206.7 to amend his claim, and that he should submit a notice of motion, together with an affidavit and any relevant exhibits to support such a motion.

Leave to amend is to be "freely given" upon such terms as may be just (CPLR 3025[b]). Factors to be considered in determining whether to allow amendment of a pleading are whether there would be any prejudice to the opposing party; the effect, if any, that amendment would have on the orderly prosecution of the action; whether the moving party unduly delayed in seeking to add the new allegations; and whether the proposed amendment is palpably improper or insufficient as a matter of law (Excelsior Ins. Co. v Antretter Contr. Corp., 262 AD2d 124 [1st Dept 1999]; Gonfiantini v Zino, 184 AD2d 368, 370 [1st Dept 1992]; Harding v Filancia, 144 AD2d 538,539 [2d Dept 1988]; White v State of New York, 161 Misc 2d 938 [Ct Cl 1994]). Claimant has failed, however, to submit an affidavit addressing any of the factors this Court must consider in determining whether to allow amendment of the claim, in spite of being advised to do so. Morever, the amended claim appears to be nothing more than a vehicle for referencing Exhibits A through G. There does not appear to be any new allegations or causes of action.

While this Court has broad discretion in deciding whether leave to amend should be granted (see, Edenwald Contr. Co., Inc. v City of New York, 60 NY2d 957, 959 [1983]), the Court declines to exercise its discretion and denies, without prejudice, claimant's motion to the extent that it may be considered a motion to amend his claim. Claimant is free to file a subsequent motion for leave to amend his claim, pursuant to the Uniform Rules for the Court of Claims, 22 NYCRR 206.7, 206.8 and 206.9, if accompanied by a supporting affidavit explaining the need for and purpose of the amendments.

Claimant's motion is denied.

September 17, 2004
Albany, New York

Judge of the Court of Claims

The following papers were read and considered on claimant's motion for summary judgment in his favor:

1. Notice of Motion with annexed "Amended Claim"

2. Affirmation in Opposition of Saul Aronson, Esq., AAG

Filed papers: Claim, Answer