1. Notice of Motion and Supporting Affidavit of Thomas Jones, pro se,
with annexed Exhibits
2. Affidavit in Opposition of G. Lawrence Dillon, AAG, with annexed
3. Affidavit (incorrectly captioned “Affirmation”) in Opposition
to Defendant’s Opposition of Thomas Jones, pro se
Motion No. M-70968
The following papers were read on Claimant’s motion which appears to be a
second motion for summary judgment in his
1. Notice of Motion and Supporting Affidavit of Thomas Jones, pro
2. Letter of G. Lawrence Dillon, AAG
3. “Application of Article” of Thomas Jones, pro se
Filed papers: Claims; Answers
Claim No. 107990, which was filed on July 9, 2003, seeks money damages in
compensation for alleged inadequate medical care that Claimant received while
housed at Mid-State Correctional Facility. Claimant alleges that he is entitled
to recover on a “simple negligence theory” as well as for violation
of rights guaranteed by the New York State Constitution.
In Motion No. M-70597, Claimant apparently seeks summary judgment in his favor
(see footnote 1). In support of his motion, Claimant provides the name
of the doctor who allegedly failed to provide adequate treatment and indicates
that the claim involved “bruising of the tendon” of his right knee.
He also references the period from June 2, 2002 to June 15, 2002, apparently the
dates of the treatment about which he is complaining. A second submission by
Claimant, submitted in reply to Defendant’s opposition, includes documents
that appear to relate to another action commenced by Claimant against the City
of New York in the US District Court for the Eastern District of New York, but
it is not clear what relation that action might have to the instant claim.
In Motion No. M-70968, Claimant again apparently seeks summary judgment in his
favor (see footnote 2). The supporting affidavit refers to
Claimant’s alleged need for medication related to the injury to his right
knee. A second submission by Claimant, captioned “Application of
Article” provides no more factual information about the claim.
The rule regarding motions for summary judgment is well-settled. “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
eliminate any material issues of fact from the case” (Winegrad v New
York Univ. Med. Ctr., 64 NY2d 851, 853 ), and such showing must be
made “by producing evidentiary proof in admissible form”
(Zuckerman v City of New York, 49 NY2d 557, 562 ). In the absence
of admissible evidence sufficient to preclude any material issue of fact,
summary judgment is unavailable, without regard to the sufficiency of the
opposing papers (Ayotte v Gervasio, 81 NY2d 1062, 1063 ; Alvarez
v Prospect Hosp., 68 NY2d 320, 324 ). The facts pleaded in the claim
must be taken as true and are accorded every favorable inference; however,
allegations consisting of bare legal conclusions as well as factual claims
flatly contradicted by documentary evidence are not entitled to any such
consideration (Maas v Cornell University, 94 NY2d 87, 91 ).
To warrant summary judgment, “there must be only one conclusion that can
be drawn from the undisputed facts” (Sanchez v State of New York,
99 NY2d 247, 254 ). Consequently, summary judgment is not frequently
granted in negligence cases, because such actions typically involve numerous
factual questions that must be resolved at trial (Pencola v Stefanich,
244 AD2d 999 [4th Dept 1997]; Rubin v Reality Fashions, 229 AD2d 1026
[4th Dept 1996])). In addition, questions of credibility must normally be
resolved at trial by the finder of fact (Orloski v McCarthy, 274 AD2d
633, 635 [3d Dept 2000]).
In the instant motion, the only evidence presented in support of the motion is
Claimant’s own written account of events and his assertion of a number of
legal conclusions that, in his view, the Court must reach. The precise facts on
which Claimant will rely are not cogently stated, and even if they were set
forth in detail, it would require an assessment of credibility to determine
whether they could be accepted as true. This action is not appropriate for
resolution by way of a motion for summary judgment.
Claimant’s motions are DENIED.