Claimant, an inmate proceeding pro se, filed this claim alleging that medical
personnel at Southport Correctional Facility improperly discontinued his
prescription medication (Robaxin), “causing needless and unnecessary pain
and suffering.” Defendant answered. Claimant now moves for summary
Defendant opposes the motion.
Claimant argues that he suffers from chronic arthritis, psychological torment
and torture, and back problems, all causing him pain. Defendant asserts that
claimant’s motion is procedurally flawed because he has failed to include
a copy of the pleadings with his motion papers. Defendant further contends that
claimant has not met his burden of proof on this motion, due to his submission
of hearsay medical articles and his simultaneous failure to submit an affidavit
from a medical expert.
As defendant correctly notes, claimant has failed to include a copy of the
pleadings which were served in this action. Accordingly, this motion could be
denied solely on that basis (see CPLR 3212 [b]; Greene v Wood, 6
AD3d 976, 977 ). However, copies of the pleadings are on file with the
Clerk of the Court and were additionally attached to defendant’s previous
cross motion for dismissal (see e.g. Stiber v Cotrone, 153 AD2d 1006,
1007 , lv denied 75 NY2d 703 ). Thus, the record is
“sufficiently complete” for the Court to overlook claimant’s
procedural defect and address the merits of the motion (Greene v Wood,
supra; General Motors Acceptance Corp. v Albany Water Bd., 187 AD2d
894, 895 n ).
Claimant’s motion must nonetheless be denied. The proponent of a motion
for summary judgment must present facts in evidentiary form which are sufficient
to establish that party’s right to judgment as a matter of law (see
generally Alvarez v Prospect Hosp., 68 NY2d 320, 324 ). In a cause of
action for medical malpractice, the claimant, as moving party, must establish
the applicable standard of care to which professionals must adhere in the
relevant community, that the defendant deviated from that standard of care, and
that such deviation caused the claimant’s injury (see Toomey v
Adirondack Surgical Assoc., 280 AD2d 754 ; see generally Hoffman v
Pelletier, 6 AD3d 889 ; Schuller v Martinelli, 304 AD2d 967
, lv denied 100 NY2d 509 ; Giambona v Stein, 265 AD2d
775, 776 ). If the movant fails to meet his or her initial burden,
however, the motion must be denied, regardless of the sufficiency of the
opposing papers (see Alvarez v Prospect Hosp., supra; Ives v Allard
Chiropractic Off., 274 AD2d 910, 911 ).
In support of his motion, claimant has attached several “articles”
taken from various Internet Websites
as a portion of his medical record and copies of several inmate grievance
determinations. The Internet material (which has no foundation or
authentication), and the uncertified and unsworn medical records (which are
hearsay) are clearly inadmissible, and thus not properly considered on this
motion (see Joseph E.G. v East Irondequoit Cent. School Dist.,
835, 836 ; Green v State of New York,
Ct Cl, Sept. 26, 2005,
Lebous, J., Claim No. 109512, Motion No. M-70591 [UID # 2005-019-572]).
Further, claimant has failed to submit expert opinion evidence to establish the
relevant standard of care, defendant’s alleged deviation therefrom, and
that such deviation caused or contributed to his injuries. The lack of expert
evidence in this case is fatal to claimant’s motion (see Hoffman v
Pelletier, supra; Schuller v Martinelli, supra).
Accordingly, claimant’s Motion No. M-74133 for summary judgment is denied
in its entirety.