Claimant, an inmate appearing pro se, filed a claim alleging, among other
things, that there was a delay in receiving his prescription medications upon
his transfer to Southport Correctional Facility (Southport). Defendant State of
New York (defendant) answered, and asserted various affirmative defenses.
Claimant thereafter filed a supplemental claim asserting two bailment causes of
action. Defendant served and filed an answer to the supplemental
Claimant’s previous motion for
partial summary judgment (Motion No. M-70591) was denied based upon his failure
both to submit admissible evidence in the form of certified medical records and
to provide an expert affidavit (Green v State of New York,
Ct Cl, Sept.
26, 2005, Lebous, J., Claim No. 109512, Motion No. M-70591 [UID #
2005-019-572]). Claimant now moves again for partial summary judgment on the
issue of liability. Defendant opposes the motion. Claimant replies. Claimant,
as the proponent of a summary judgment motion, must set forth evidentiary facts
in admissible form which establish a prima facie showing of entitlement to
judgment as a matter of law (Winegrad v New York Univ. Med. Ctr.,
851, 853 ; Zuckerman v City of New York,
49 NY2d 557, 562 ).
Once this burden has been met, it is incumbent upon the opposing party to
produce admissible evidence sufficient to create material issues of fact
requiring a trial of the action (Alvarez v Prospect Hosp.,
68 NY2d 320,
324 ). However, absent such a prima facie showing by the movant, the
motion must be denied, regardless of the sufficiency of the opposing papers
(Winegrad v New York Univ. Med. Ctr., supra
“Medical negligence, in essence, alleges negligent omissions or
commissions by State caregivers which can be readily determined by the fact
finder using common knowledge without the necessity of expert testimony.
However, this theory is limited to ‘those cases where the alleged
negligent act may be readily determined by the trier of the facts based on
common knowledge’ ” (Carter v State of New York, Ct Cl,
Patti, J., Mar. 22, 2006, Claim No. 104863, [UID # 2006-013-510], quoting
Coursen v New York Hospital-Cornell Med. Center, 114 AD2d 254, 256
). Even though a claim is properly one for medical negligence, an expert
medical opinion is required as part of the claimant’s prima facie case in
those instances “[w]here medical issues are not within the ordinary
experience and knowledge of lay persons” (Wells v State of New York,
228 AD2d 581, 582 , lv denied 88 NY2d 814 ; see Tatta
v State of New York, 19 AD3d 817, 818 , lv denied 5 NY3d 712
In his affidavit,
claimant states that in
February 2004 he was prescribed a treatment plan which included issuance of
Clotrimazole and Geri-Hydrolac 12 (Lac-hydrin Lotion). Claimant avers that upon
his transfer from Green Haven Correctional Facility (Green Haven) to Southport,
he turned over the medications to the transport officers. Claimant asserts that
when he arrived at Southport, Nurse C. Miller withheld those two medications in
violation of the Health Services Policy Manual (the Manual). Claimant states
that due to the lack of medication, he experienced a foot fungus which caused
“itchy and crack[ed] skin due to discontinuance of medical treatment
resulting in chronic symptoms.” Claimant also states that although Dr.
John Alves prescribed Eucerin cream for him on April 14, 2004, the pharmacist
did not dispense the cream until May 28, 2004.
In an apparent effort to correct the deficiencies set forth in the decision on
his prior motion for partial summary judgment, claimant has submitted a portion
of his medical records which was certified by a registered nurse at
A review of the record establishes
that while he was located at Green Haven, claimant was evaluated by a
podiatrist, and DOCS medical personnel ordered Clotrimazole and Lac-hydrin in
compliance with the treatment recommendation. When claimant arrived at
Southport on April 9, 2004, he participated in a health screening and medical
orientation. Nurse Miller noted that claimant had been using the Clotrimazole
and Lac-hydrin on his feet and stated that “NP to evaluate for
While claimant cites the Manual
for his position that his medications should have been returned to him upon his
arrival at Southport, neither party has provided the Court with a copy of the
Manual. Therefore, the Court cannot determine whether Nurse Miller’s
conduct was in violation of the Manual or whether it was appropriate to withhold
the medications pending an evaluation to determine their continued need.
On April 14, 2004, claimant was examined by Dr. Alves who prescribed, among
other medications, Eucerin cream with the notation “in shower
There is no further discussion of
Eucerin cream until the entry dated May 28, 2004 which indicated that
“Eucerin was ordered by NP
for in cell use - which has been
delivered and for shower can (this has just been delivered to facility + 1 jar
was prepared for this I/M. Will be delivered to bubble officers in AM)”
(emphasis supplied). Given the reference to a nurse practitioner
rather than to a physician (Dr. Alves), a reasonable inference may be drawn that
there are medical record entries between April 14, 2004 and May 26,
which are not before the Court. Further,
on April 14, 2004, Dr. Alves indicated that claimant’s BS (blood sugar)
should be tested twice a day, and the results reviewed in one week. Based upon
that entry, it is reasonable to expect that the results would be recorded in
claimant’s medical record. However, there was no documentation of the
results nor any further discussion of the issue. The Court finds that there are
questions of fact as to whether the Eucerin cream which was delivered on May 28,
2004 was in response to an order issued by a nurse practitioner sometime after
April 14, 2004 or whether it was delivered in response to the April 14th order
by Dr. Alves.
Moreover, claimant has not provided an expert affidavit to establish causation.
The effect on claimant of the lack of Clotrimazole, Lac-hydrin, and/or Eucerin
is beyond the ordinary experience and knowledge of a layperson (see Tatta v
State of New York, supra; Wells v State of New York, supra), and
therefore requires a medical opinion. Claimant’s failure to submit such
an affidavit is fatal to this motion.
Based upon the existence of factual questions as well as the lack of an expert
opinion, claimant has not established a prima facie case of entitlement to
judgment as a matter of law. Accordingly, Motion No. M-73700 for partial summary
judgment is denied.
1) Notice of Motion filed on July 5, 2007; Affidavit of Shawn Green sworn to on
June 22, 2007, and attached Exhibits A through D.
2) Affirmation in Opposition of Geoffrey B. Rossi, AAG, dated July 31,
3) Reply of Shawn Green sworn to on August 8, 2007.