New York State Court of Claims

New York State Court of Claims

MALIK v. THE STATE OF NEW YORK, #2006-038-506, Claim No. 112655, Motion No. M-72321


Claimant’s motion for summary judgment denied; motion unsupported by evidence in admissible form.

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:
Abdul-Jabbor Malik, Pro se
Defendant’s attorney:
Eliot Spitzer, Attorney General of the State of New YorkBy: Glenn C. King, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
December 8, 2006

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant, an inmate at a State correctional facility, moves for summary judgment on his claim, in which he seeks redress for the State’s alleged failure to give him medical treatment. Defendant opposes the motion.

Summary judgment is a drastic remedy because it deprives a litigant of the opportunity to have his or her day in court (see Andre v Pomeroy, 35 NY2d 361, 364 [1974]). It is well established that a movant seeking summary judgment must, in the first instance, “make a prima facie showing of entitlement to judgment as a matter of law” (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). “Failure to make such showing requires denial of the motion, regardless of the sufficiency of the opposing papers” (Winegrad v New York Univ. Med. Ctr., supra). The submissions of a claimant seeking summary judgment on a negligence claim must demonstrate that a duty flowed from defendant to the claimant, that the duty was breached, that claimant suffered injury, and that the breach was a proximate cause of claimant’s injury (see Kenney v City of New York, 30 AD3d 261, 262 [1st Dept 2006]; Patrick v State of New York, 11 Misc 3d 296, 320 [Ct Cl 2005]). One seeking summary judgment on a medical malpractice claim must demonstrate that the defendant deviated or departed from acceptable medical practice and that such deviation or departure was a proximate cause of claimant’s injury (see Alvarado v Miles, 32 AD3d 255, 259 [1st Dept 2006]; Valentine v Lopez, 283 AD2d 739, 741 [3d Dept 2001]; Arias v State of New York, 195 Misc 2d 64, 71 [Ct Cl 2003]).

To make these substantive showings, a motion for summary judgment must be supported “by tender of evidentiary proof in admissible form” (Zuckerman v City of New York, 49 NY2d 557, 562 [1980]), and a movant’s failure to submit proof in that form requires denial of the motion (see McFadden v State of New York, UID # 2004-032-049, Claim #103390, Motion

# M-68020, Hard, J., June 16, 2004). Moreover, the movant seeking summary judgment on a medical malpractice claim must submit an affidavit of a medical expert that addresses whether defendant departed from accepted standards of medical care and, if so, whether that departure was the cause of any injury (see Green v State of New York, UID # 2005-019-572, Claim #109512, Motion # M-70591, Lebous, J., Sept. 26, 2005; Parra v State of New York, UID

# 2004-032-064, Claim #108188, Motion # M-68416, Hard, J., Sept. 17, 2004; cf. Svoboda v Our Lady of Lourdes Mem. Hosp., Inc., 31 AD3d 877 [3d Dept 2006]; Berger v Becker, 272 AD2d 565, 566 [2d Dept 2000]).

Claimant alleges that laboratory tests on his blood and urine that were conducted in April 2006 revealed that claimant had a urinary tract infection and high cholesterol. Claimant further alleges that defendant has failed to provide him with medical care to address these conditions and that the lack of treatment caused him to sustain injuries. In support of his motion for summary judgment, however, claimant submits only a document styled as an “affirmation,” in which he details the facts of his claim. This document does not have the force and effect of an affidavit because it is not subscribed and affirmed by claimant to be true under the penalties of perjury, nor does claimant fall within the category of persons authorized by CPLR 2106 to submit an affirmation.

Inasmuch as claimant’s unsworn statement does not constitute evidence in admissible form (see CPLR 2106), and his motion is unsupported by any other admissible proof, the instant motion cannot be granted (see McFadden v State of New York, supra; Harris v State of New York, UID # 2006-009-045, Claim # 109335, Motion # M-71584, Midey, Jr., J, Aug. 17, 2006).

Accordingly, claimant’s motion for summary judgment is denied.

December 8, 2006
Albany, New York

Judge of the Court of Claims

Papers Considered:

(1) Notice of Motion for Summary Judgment, dated September 20, 2006;

(2) Claimant’s “Affirmation In Support For Summary Judgment,” undated;

(3) Affirmation in Opposition of Glenn C. King, Esq., AAG, dated October 12, 2006;

(4) Claimant’s “Affirmation In Objection In Point of Law,” dated October 16, 2006.