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 ). 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
; 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 ;
Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 ).
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.