New York State Court of Claims

New York State Court of Claims

MALIK v. THE STATE OF NEW YORK, #2007-038-529, Claim No. 112655, Motion No. M-72803


Claimant’s motion for summary judgment denied for lack of expert affidavit. Successive motions for summary judgment not proper.

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:
ANDREW M. CUOMO, Attorney General of the State of New York
By: Glenn C. King, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
April 18, 2007

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant, an inmate at a State correctional facility who is prosecuting this claim pro se, seeks damages for the State’s alleged failure to provide him medical treatment. In a prior decision and order, this Court denied claimant’s motion for summary judgment, on the grounds that claimant’s “affirmation” was not evidence in admissible form that would support the motion, and that claimant had failed to submit an expert affidavit substantiating his claim of medical malpractice (see Malik v State of New York, UID # 2006-038-506, Claim # 112655, Motion # M-72321, DeBow, J. [Dec. 8, 2006]). Claimant has now submitted a second motion for partial summary judgment on the issue of liability, in which he seeks to cure the defects in his prior motion. In support of the instant motion, he submits his own affidavit rather than an improper affirmation, and contends that an expert affidavit is not necessary in this case, because the claim alleges negligence that is recognizable to a lay person, specifically, defendant’s alleged failure to treat his allegedly high cholesterol.

At the threshold, it must be noted that claimant’s opportunity to submit a motion for summary judgment as of right was exercised upon his first motion for summary judgment, and the fact that he did not submit sufficient and adequate proof in support thereof does not allow a successive motion. “Multiple summary judgment motions in the same action should be discouraged in the absence of a showing of newly discovered evidence or other sufficient cause” (LaFreniere v Capital Dist. Transp. Auth., 105 AD2d 517, 518 [3d Dept 1984]; see 2009 85th Street Corp. v WHCS Real Estate Ltd. Partnership, 292 AD2d 520 [2d Dept 2002]; cf. Inter-Power of New York, Inc. v Niagara Mohawk Power Corp., 259 AD2d 932 [3d Dept 1999], lv denied 93 NY2d 812 [1999]). Claimant does not offer any new evidence, but the lack of objection by defendant to the procedural defect, combined with claimant’s status as an incarcerated pro se litigant and judicial preference to decide matters on the merits, leads this Court to exercise its discretion to consider the motion.

As stated in this Court’s prior decision, “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])” (Malik v State of New York, UID # 2006-038-506, supra). “Widespread consensus exists, however, that a narrow category of factually simple medical malpractice cases requires no expert to enable the [factfinder] reasonably to conclude that the accident would not happen without negligence. Not surprisingly, the oft-cited example is where a surgeon leaves a sponge or foreign object inside the [claimant’s] body” (Kambat v St. Francis Hosp., 89 NY2d 489, 496 [1997]; see also Rivers v State of New York, 142 Misc 2d 563, 567 [Ct Cl 1989], revd on other grounds, 159 AD2d 788 [3d Dept 1990], lv denied 76 NY2d 701 [1990] [expert affidavit unnecessary where medical malpractice related to operation on wrong body part]). Contrary to claimant’s argument in support of the instant motion, medical malpractice involving an alleged failure to treat elevated cholesterol does not fall within that narrow category of medical malpractice cases that does not require expert testimony to enable the factfinder to comprehend the medical evidence. In this case, an affidavit of an expert is required to demonstrate whether the failure to treat claimant’s elevated cholesterol levels constituted a deviation from accepted standards of medical care, and if so, whether that failure caused the physical and mental distress injuries alleged by claimant. Inasmuch as his motion lacks the support of an expert affidavit, claimant has not met his prima facie burden of establishing his right to judgment as a matter of law.

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

April 18, 2007
Albany, New York

Judge of the Court of Claims

Papers considered:

(1) Notice of Motion for Partial Summary Judgment, dated January 3, 2007;

(2) Affidavit of Abdul-Jabbor Malik, sworn to January 3, 2007;

(3) Claimant’s Memorandum of Law, dated January 3, 2007;

(4) Affirmation of Glenn C. King, AAG, dated January 11, 2007;

(5) Affirmation of Glenn C. King, AAG, dated October 12, 2006;

(6) Claimant’s Memorandum of Law, dated January 25, 2007.