Claimant, an inmate appearing pro se, moves for summary judgment pursuant to
CPLR 3212. The defendant State of New York (hereinafter "State") opposes the
By way of background, the original claim was filed and served on June 21, 2004.
Claimant then filed a supplemental claim on July 19, 2004. The State filed a
verified answer to the supplemental claim on August 16, 2004.
This claim asserts various causes of action which arose during claimant's
transfer to and his incarceration in Southport Correctional Facility
(hereinafter "Southport") in April 2004. More specifically, the original claim
contains various allegations regarding Southport's delay in dispensing
claimant's prescription medicine and cream; Southport's delay in providing
claimant his medically required diet; and Southport's refusal to honor
claimant's "clipper permit" permitting him two beard trimmings per month.
Thereafter, two bailment causes of action were added by way of the service and
filing of said supplemental claim.
Claimant's current motion is a hybrid of a motion to strike the affirmative
defenses contained in the State's verified answer to the supplemental claim, as
well as a motion for partial summary judgment.
To the extent that claimant's motion may be construed as a motion to strike the
affirmative defenses contained in the State's verified answer to the
supplemental claim it must be denied. It is well-settled that, "[a] party may
move to strike any scandalous or prejudicial matter unnecessarily inserted in a
pleading." (CPLR 3024 [b]). Affirmative defenses are not dispositive of a
claim and are merely assertions of a party, absent prejudice, that will not be
stricken. (CPLR 3024; 5 Weinstein-Korn-Miller, NY Civ Prac ¶ 3018.14).
The court has reviewed the State's affirmative defenses and finds that none are
prejudicial or scandalous in any respect whatsoever and the State properly
included all these affirmative defenses in its verified answer to the
supplemental claim. Claimant's motion to strike the State's affirmative
defenses is denied.
To the extent that claimant's motion may be construed as seeking partial
summary judgment, it will be denied as well.
Generally, on a motion for summary judgment, the moving party must present
evidentiary facts to establish that party's right to judgment as a matter of
law, upon which the opposing party must present evidentiary proof in admissible
form that demonstrates the existence of a factual issue. (Friends of Animals
v Associated Fur Mfrs
., 46 NY2d 1065). If the moving party fails to satisfy
its burden, the motion must be denied regardless of the adequacy of the opposing
papers. (Alvarez v Prospect Hosp
., 68 NY2d 320, 324). Moreover, if the
issues involve conditions beyond the common knowledge of a fact finder, such as
here, expert medical proof will be required. (Duffen v State of New
, 245 AD2d 653, lv denied
91 NY2d 810). 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 and that the deviation from the standard of care caused the injury
suffered by claimant. (Hoffman v Pelletier
, 6 AD3d 889; Schuller v
, 304 AD2d 967, lv denied
100 NY2d 509).
Here, claimant's motion for summary judgment is not supported by any medical
expert opinion and consequently he has failed to make out a prima facie case of
malpractice or medical negligence. (Armstrong v State of New York, 214
AD2d 812, lv denied 86 NY2d 702). Rather, claimant's papers consist only
of his personal affidavit and various medical records, but he does not submit an
expert's affidavit. The uncertified medical records are not in proper
evidentiary form for purposes of a summary judgment motion. (Joseph E. G. v
East Irondequoit Cent. School Dist., 273 AD2d 835, 836). It appears that
claimant is basing his allegations of medical malpractice and/or medical
negligence on what he perceives as the State's obvious violation of its own
rules and regulations. For example, with respect to Southport's alleged six day
delay in providing claimant with his prescription medication upon transfer,
claimant cites an internal facility regulation requiring that medication be
returned to an inmate after transfer upon arrival at his new facility.
(Claimant's Memorandum of Law, pp 1-2). Claimant's conclusory statements that
his treatment could have or should have been different or that he suffered
injury as a result of said delay is not sufficient to sustain his burden of
establishing as a matter of law that said delay was the proximate cause of his
injuries. Nor is there any proof in evidentiary form supporting claimant's
motion with respect to the allegations of injuries resulting from a restricted
diet or lack of access to the barber. In sum, claimant has offered absolutely
no evidentiary proof demonstrating his right to summary judgment as a matter of
Accordingly, in light of the foregoing, it is ORDERED that the claimant's
motion to strike the affirmative defenses and/or for partial summary judgment,
Motion No. M-70591, is DENIED.
Claim, filed June 21, 2004.
Supplemental Claim, filed July 19, 2004.
Verified Answer, filed July 23, 2004.
Verified Answer to Supplemental Claim, filed August 16, 2004.
Notice of Motion No. M-70591, dated August 10, 2005, and filed August 22,
"Affirmation" [sic] of Shawn Green, in support of motion, sworn to
August 10, 2005, with attached exhibits.
Memorandum of Law, in support of motion, dated August 10, 2005.
Affirmation of Joseph F. Romani, AAG, in opposition to motion, dated September
8, 2005, and filed September 12, 2005.
"Reply", of Shawn Green, in support of motion, sworn to September 18, 2005, and
filed September 22, 2005.
Claimant's motion to file and serve a second
supplemental claim adding yet a third bailment cause of action was denied, as
well as a subsequent motion to renew pertaining to said denial. (Green v
State of New York
, Ct Cl, September 27, 2004, Lebous, J., Claim No. 109512,
Motion No. M-68999 [UID No. 2004-019-579]; Green v State of New York
Cl, February 3, 2005, Lebous, J., Claim No. 109512, Motion Nos. M-69070 &
M-69431 [UID No. 2005-019-507]). Selected unreported decisions from the Court
of Claims are available via the Internet at