New York State Court of Claims

New York State Court of Claims

SALDANA v. STATE OF NEW YORK, #2007-040-064, Claim No. 110524, Motion No. M-74129


Synopsis


CPLR 3212 motion for summary judgment by Prisoner pro se on Med Mal claim. Motion denied as no expert proof offered.


Case Information

UID:
2007-040-064
Claimant(s):
JUAN SALDANA, 93A3364
1 1.Caption amended to reflect the State of New York as the proper defendant.
Claimant short name:
SALDANA
Footnote (claimant name) :

Defendant(s):
STATE OF NEW YORK
Footnote (defendant name) :
Caption amended to reflect the State of New York as the proper defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
110524
Motion number(s):
M-74129
Cross-motion number(s):

Judge:
CHRISTOPHER J. McCARTHY
Claimant’s attorney:
Juan Saldana, Pro Se
Defendant’s attorney:
ANDREW M. CUOMO
Attorney General of the State of New YorkBy: Saul Aronson, Esq., AAG
Third-party defendant’s attorney:

Signature date:
December 3, 2007
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

For the reasons set forth below, Claimant’s motion for summary judgment in his favor is denied.

This pro se Claim, which was filed in the office of the Clerk of the Court on February 18, 2005, asserts that Claimant did not receive proper and adequate medical care for an ear ailment while incarcerated at Upstate Correctional Facility, resulting in hearing loss.

In his affidavit submitted in support of his motion, Claimant asserts, in general terms, that his hearing loss is the result of improper medical care and is sufficiently established to warrant the Court to direct judgment in his favor as a matter of law.

Summary judgment is a drastic remedy to be granted sparingly and only where no material issue of fact is demonstrated in the papers related to the motion (see Crowley’s Milk Co. v Klein, 24 AD2d 920 [3d Dept 1965]; Wanger v Zeh, 45 Misc 2d 93 [Sup Ct, Albany County 1965], affd 26 AD2d 729 [3d Dept 1966]). CPLR 3212(b) requires that a motion for summary judgment be supported by a copy of the pleadings (Capelin Assoc. v Globe Mfg. Corp., 34 NY2d 338 [1974]). In support of his motion, Claimant did not submit a copy of his Claim or the State’s Answer. The failure to include pleadings in support of a motion for summary judgment requires that the motion be denied, regardless of the merits of the motion (Senor v State of New York, 23 AD3d 851 [3d Dept 2005]; Bonded Concrete, Inc. v Town of Saugerties, 3 AD3d 729 [3d Dept 2004], lv dismissed 2 NY3d 793 [2004]; Deer Park Assocs. v Robbins Store, 243 AD2d 443 [2d Dept 1997]; CPLR 3212[b]). Therefore, based upon the foregoing, the motion for summary judgment is denied.

Assuming, arguendo, the motion was considered by the Court, the request would still be denied. 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 demonstrate the absence of any material issue of fact (Winegrad v New York Univ. Med. Center, 64 NY2d 851, 853 [1985]; Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957]). Failure to make such a prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers (Winegrad v New York Univ. Med. Center, 64 NY2d 851, supra at 853). Claimant’s submission fails to establish entitlement to judgment as a matter of law. Claimant has failed to establish that his asserted hearing loss is the result of any improper medical care. He offers self- serving conclusory statements, and the documentary evidence indicates that he complained of ear pain, was seen by a doctor, received antibiotics and that a hearing test in 2005 stated he had loss of hearing. The evidence submitted does not establish the proximate cause of the hearing loss. Claimant’s motion is, therefore, denied.


December 3, 2007
Albany, New York

HON. CHRISTOPHER J. MCCARTHY
Judge of the Court of Claims


The following papers were read and considered by the Court on Claimant’s motion for summary judgment:


Papers Numbered

Notice of Motion and Affidavit in Support
and Exhibits attached 1


Affirmation in Opposition and Exhibit
attached 2


Filed Papers: Claim and Answer