New York State Court of Claims

New York State Court of Claims

GREEN v. THE STATE OF NEW YORK, #2005-019-572, Claim No. 109512, Motion No. M-70591


Claimant's motion to strike the affirmative defenses and/or for partial summary judgment, is denied.

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:
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERALBY: Joseph F. Romani, Assistant Attorney General, of counsel
Third-party defendant's attorney:

Signature date:
September 26, 2005

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant, an inmate appearing pro se, moves for summary judgment pursuant to CPLR 3212. The defendant State of New York (hereinafter "State") opposes the motion.

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.[1]

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.[2] 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 York, 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 Martinelli, 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 law.

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.

September 26, 2005
Binghamton, New York

Judge of the Court of Claims

The court has considered the following papers in connection with this motion:
  1. Claim, filed June 21, 2004.
  2. Supplemental Claim, filed July 19, 2004.
  3. Verified Answer, filed July 23, 2004.
  4. Verified Answer to Supplemental Claim, filed August 16, 2004.
  5. Notice of Motion No. M-70591, dated August 10, 2005, and filed August 22, 2005.
  6. "Affirmation" [sic] of Shawn Green, in support of motion, sworn to August 10, 2005, with attached exhibits.
  7. Memorandum of Law, in support of motion, dated August 10, 2005.
  8. Affirmation of Joseph F. Romani, AAG, in opposition to motion, dated September 8, 2005, and filed September 12, 2005.
  9. "Reply", of Shawn Green, in support of motion, sworn to September 18, 2005, and filed September 22, 2005.

[1]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, Ct 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

[2]The court notes that claimant's papers are directed towards those allegations regarding medical malpractice, medical negligence and ministerial neglect, but not the two bailment causes of action.