New York State Court of Claims

New York State Court of Claims

PETTUS v. THE STATE OF NEW YORK, #2007-044-501, Claim No. 112084, Motion No. M-74133


Submission of inadmissible internet material, uncertified and unsworn medical records, and lack of an expert affidavit are fatal to claimant’s motion for summary judgment in medical malpractice claim

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:
HON. ANDREW M. CUOMO, ATTORNEY GENERALBY: Joseph F. Romani, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
January 8, 2008

Official citation:

Appellate results:

See also (multicaptioned case)


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 judgment.[1] 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 [2004]). 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 [1989], lv denied 75 NY2d 703 [1990]). 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 [1992]).

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 [1986]). 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 [2001]; see generally Hoffman v Pelletier, 6 AD3d 889 [2004]; Schuller v Martinelli, 304 AD2d 967 [2003], lv denied 100 NY2d 509 [2003]; Giambona v Stein, 265 AD2d 775, 776 [1999]). 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 [2000]).

In support of his motion, claimant has attached several “articles” taken from various Internet Websites[2] as well 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., 273 AD2d 835, 836 [2000]; 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.

January 8, 2008
Binghamton, New York
Judge of the Court of Claims

The following papers were read on claimant’s motion:

1) Notice of Motion filed on October 25, 2007; “Affidavit/Affirmation” of James Pettus sworn to on October 11, 2007, and attached exhibits.

2) Affirmation in Opposition of Joseph F. Romani, AAG, dated November 1, 2007.
3) Notice of Motion filed on November 19, 2007; “Affidavit/Affirmation” of James Pettus sworn to on November 13, 2007.

Filed papers: Claim filed on March 15, 2006; Verified Answer filed on April 12, 2006.

[1]. Previously, claimant moved to amend the ad damnum clause (Motion No. M-72676) and defendant cross-moved to dismiss the claim for failure to state a sum certain (Cross Motion No. CM-72790). In light of the Legislature’s recent amendment of Court of Claims Act § 11 (b) to provide that a sum certain is not required to be stated in the claim in personal injury, medical, dental or podiatric malpractice, or wrongful death suits (L 2007, ch 606), both motions were denied (Pettus v State of New York, Ct Cl, Sept. 27, 2007, Schaewe, J., Claim No. 112084, Motion No. M-72676, Cross Motion No. CM-72790 [UID # 2007-044-572]).
[2]. Interestingly, the articles obtained from,, and concern tinnitus (ringing in the ear) and vertigo, neither of which claimant complains of in this claim.